What about Restrictive Covenants?

The law about restrictive covenants is notoriously complicated. Often the advice that is given is that a covenant may be enforceable but it can be difficult to go any further.

HAS THE RESTRICTIVE COVENANT BEEN REGISTERED?

If the registered title shows a restrictive covenant originally entered into on or after 1st January 1926 and before first registration, always do a Land Charges search to make sure that the covenant was registered as a Class D(ii) Land Charge.

A restrictive covenant can only be enforced against a successor in title of the original covenantor if he has notice of the covenant. If the covenant was made on or after 1st January 1926 (the date the Land Charges Act 1925 came into force) a successor in title can only have notice if the covenant has been duly registered.

The appearance of a restrictive covenant in the charges register of a registered title is commonly assumed to be conclusive. This is a mistake. Section 32(3) of the Land Registration Act 2002 the entry of a notice in respect of an interest:

… does not necessarily mean that the interest is valid, but does mean that the priority of the interest, if valid, is protected …

On first registration of a title the practice is to note systematically on the register all restrictive covenants that might affect the title, whether or not they are in fact valid. In fact such covenants are very often invalid. If the covenant was entered into on or after 1st January 1926 and before first registration under the Land Registration Act 1925 or 2002, it is always worth doing a Land Charges search against the name of the original covenantor. It has been estimated that as many as one out of four restricted covenants was not properly registered as a Class D(ii) Land Charge.

HOW TO FIND OUT IF A RESTRICTIVE COVENANT IS REGISTERED

Do the following to find out if a property has a restrictive covenant registered as a Class D(ii) Land Charge.

Download, Fill and Post a completed K15 form to HM Land Registry

The form must contain the name of the first registered owner of the property and a range of years. A fee of £1 is payable for a search. A typical entry appears as:

If a D(ii) land charge exists for the property - The Land Registry sends back a K18 form containing details of the D(ii) entry. For example:

You can then send off for an ‘’Office copy” (the original application for the restrictive covenant charge), by downloading and completing a K19 form and sending it to the Land Charges Office Copy section in Plymouth. Fee is £1. A typical K19 form entry appears as:

If a D(ii) land charge does not exist for the property - The Land Registry sends a K17 form with no listed D2 charges:

All forms can be downloaded from the land-registry section of the gov.uk website: https://www.gov.uk/government/organisations/land-registry Always use the gov.uk site as other sites charge significantly for similar services..