Freehold land can be either registered (at HM Land Registry) or unregistered (i.e. the owner of the land will have in their possession a bundle of deeds). Freehold land can be affected by any of the following third-party interests:
- easements
- restrictions
- notices
- mortgages
- covenants
Freehold covenants are a type of contractual promise concerning land. Restrictive covenants can be enforced against future owners of the land, in contrast to positive covenants which can only be enforced against the person who made the promise.
A restrictive covenant (also known as a negative covenant) consists of an agreement in a deed that one party will restrict the use of its land in some way for the benefit of another’s land. For example, a restrictive covenant might:
- limit possible uses of the land (e.g. to residential purposes only);
- prohibit trades or businesses operating on the land;
- forbid undesirable activities or potential nuisances;
- restrict the number or type of buildings that can be erected, or require observance of a building line, or restrict the height of new buildings.
A positive covenant imposes an obligation to carry out some positive action in relation to land or requires expenditure of money. For example, a positive covenant may require:
- works of repair or maintenance.
- erection of buildings or boundary fences.
This distinction between positive and restrictive covenants is important. The burden (i.e. the obligation to observe a covenant) does not generally bind successors in title where a covenant is positive in nature, but it may do so if the covenant is restrictive.
This Library briefing paper deals only with freehold covenants (not leasehold covenants, which operate under a wholly different legal regime). The term ‘land’ is used throughout out this Paper to denote all freehold property.
