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Restrictive Covenants

In relation to land and property the expression "restrictive" is commonly used to refer to agreements that restrict the use of land. These have become known as restrictive covenants. An example would be a covenant that prohibits development. This is in contrast to a positive covenant, which requires the owner of the land to do something, for example maintain a fence. Clearly a prospective purchaser of land subject to restrictive covenants needs to be carefully advised about their effect; whether they are enforceable; whether they could be discharged or varied. The law allows the discharge or variation of covenants in certain circumstances.

Acting in breach of a restrictive covenant can have serious consequences in that the party with the benefit of the covenant may be able to obtain an injunction to prevent a breach or even to restore the previous position, eg to demolish a development; and even if he cannot obtain an injunction he may be entitled to substantial damages.

Whether you have the benefit of a restrictive covenant or are subject to one it is desirable to have advice on the enforceability of the covenant and available remedies.