A Restrictive Covenant on My Land Says No Building: Is Development Dead?

A restrictive covenant is a promise, made in a deed, not to do something on a piece of land: not to build, not to put up more than one house, not to run a trade. The person who made the promise is called the covenantor, and the person it was made to is the covenantee. The right to enforce the promise is called the benefit, and the land that carries the promise has the burden. Solicitors' letters and tribunal decisions about covenants use those four words throughout, so they are worth knowing.

The Upper Tribunal's own guide to covenant applications, known as T608, describes them as private arrangements that can be enforced only by the person who imposed them and by later owners of that person's land. That last point is why so many covenants turn out to be weaker than they look. A covenant needs someone with the benefit who is still able, and minded, to enforce it. Where that person or that land cannot be identified, where the covenant was personal to people long gone, or where the neighbourhood it was meant to protect has changed beyond recognition, the promise may carry little weight in practice.

The scale of the issue is large. The Law Commission, the body that reviews the law of England and Wales for Parliament, reported in June 2011 that over three quarters of freehold properties are affected by one or more covenants, easements or similar rights. A covenant on your register does not mark your land out as unusual.

On registered land, a restrictive covenant appears in the charges register, part C of your title at HM Land Registry, usually as a short entry that refers to an older deed: a conveyance or transfer from decades ago in which the covenant was first given. The register tells you a covenant exists, and only that deed tells you what it says and which land it was meant to protect. Our guide to checking exactly what land you own explains how to order your register, title plan and the copies of old deeds the register refers to.

An entry on the register is not proof that a covenant can still be enforced. The Law Commission's 2011 report makes the point directly: restrictive covenants are not registered in the way ownership is, so the register does not vouch for their validity. The register warns a buyer to look; the deed and the law decide the rest.

The wording varies a great deal, and the wording matters. These are real covenants from cases decided in the higher courts and the tribunal, each of which played out differently.

The cases show three broad kinds of wording: an outright ban on building, a limit (one house, or a single private dwelling), and a requirement to get someone's consent first. They are dealt with in different ways, which is why the first job is always to read the deed itself rather than the one line on the register.

The burden side is usually the easy part. Section 79 of the Law of Property Act 1925 treats a covenant relating to the covenantor's land as made on behalf of the covenantor's successors in title too, and for a restrictive covenant that includes the owners and occupiers of the land for the time being. The Law Commission notes one further requirement: a later owner is bound only if they had notice of the covenant, which is one reason covenants are entered on the register.

The benefit side is where most covenants are tested. The person trying to enforce has to show that the benefit passed to them, and English law recognises three main ways.

• Annexation to land. The benefit is attached, or annexed, to a particular piece of land, so it passes automatically to whoever owns that land. For covenants made after 1925, section 78 of the Law of Property Act 1925 treats a covenant relating to the covenantee's land as made with the covenantee's successors in title, and for restrictive covenants that includes the owners and occupiers for the time being of the land intended to be benefited. In Federated Homes v Mill Lodge Properties, decided in 1980, the Court of Appeal read that section as annexing the benefit to the land automatically, and the Law Commission's 2011 report records that this is how section 78 is now interpreted.
• Express assignment. Where the benefit was not annexed, it can pass by being expressly handed on when the benefited land is sold. Some deeds insist on it: the Court of Appeal in Crest Nicholson discussed an earlier case in which the covenant was not to pass to any later buyer unless the benefit was expressly assigned.
• A building scheme. Where a developer laid out an estate in plots, sold them on common covenants, and intended every plot to benefit from every other plot's promises, the covenants can be enforced by and against every plot owner, whatever the order of sale. Barristers at Falcon Chambers, writing in the Solicitors Journal in October 2016, describe these schemes as a relatively rare beast, with four conditions set by the 1908 case of Elliston v Reacher, including that the estate was laid out in lots before any were sold.

The automatic annexation rule has limits, and the 2004 Court of Appeal decision in Crest Nicholson v McAllister set out two of them. First, the land intended to be benefited must be defined in the deed so that it is easily ascertainable. The court explained the reason: a buyer of the burdened land should be able to work out who can enforce the covenant. In the Crest Nicholson judgment, Lord Justice Chadwick held that this requirement remains a necessary condition for annexation. Second, the deed can limit the benefit by its own words, for example to the seller's land "for the time being remaining unsold". Once that land had been sold off, the owner relying on the covenant could not enforce it.

Put together, those rules mean a covenant in an old farm conveyance, described only as given for the seller's benefit, with no plan and no description of the seller's land, may have nobody left who can enforce it. A covenant that names the benefited land precisely, or that sits in a properly laid out building scheme, is a different matter. Neither conclusion can be reached from the register alone. Where it genuinely matters, section 84(2) of the 1925 Act lets the court declare whether land is affected by a restriction and whether it is enforceable, and if so by whom.

Age alone does not end a covenant. A covenant from 1905 that was properly attached to identifiable land can still bind today. But age changes three things, and each tends to work in the landowner's favour.

Covenants that need a named person's consent can fall away once that person is gone. In the Ealing case decided by the Upper Tribunal in May 2022, a 1955 covenant needed the written approval of the original seller, who could not be traced, and it was accepted as obsolete. In Crest Nicholson, the trial judge had held that a covenant requiring a named person's approval of building plans had become spent once the people who could approve had died or the company had been dissolved, and the Court of Appeal saw no reason to differ.

The same Ealing decision also discharged a set of Victorian covenants on the land, along with the 1955 ones, so that eight flats with planning consent could be built. Old wording on a title is a reason to look closely, not a reason to give up.

Planning permission is public law: the council decides whether a use of land is acceptable for the area. A restrictive covenant is private law: a promise between owners of land, enforced in the courts. Getting one does not remove the other. In the hospice case, the Supreme Court recorded the Upper Tribunal's own words: the fact that planning permission has been granted does not mean that private rights can necessarily be overridden. In that case, permission had been granted and the homes built, and the covenant still stood.

The two systems do meet in one place. When the tribunal decides a section 84 application, section 84(1B) of the 1925 Act tells it to take into account the development plan and the pattern of grants and refusals of planning permission in the area, along with when and why the covenant was imposed. A planning permission does not discharge a covenant, but it is evidence the tribunal weighs, and in the Ealing case the scheme had already passed through planning before the tribunal discharged the covenants.

Timing matters in the other direction too. Birketts points out that the planning process is very public, which makes neighbours more likely to look at their own titles. An application on land with a covenant can prompt the people with the benefit to come forward, and that can affect the insurance route explained below. That is why the covenant and the planning strategy are best looked at together, at the start.

A release by agreement is the cleanest result where it is possible, because it ends the matter for good. Birketts calls it in theory the best step, but notes the practical problem: where the benefited land has been divided into many plots, every owner of those plots is likely to need to sign. Where the benefit has passed to the owners of a whole estate, a release is rarely practical, and one of the other routes takes its place.

The routes are not interchangeable, and the order matters. Approaching the people with the benefit to ask for a release tells them the covenant is in play, which can close off the insurance route. Once the tribunal route is chosen, the application itself gives notice to them. So the choice of route is made before anyone is contacted, not after.

Restrictive covenant indemnity insurance is a policy that responds if someone with the benefit later tries to enforce the covenant against the land. It does not remove the covenant, which stays on the register, but it moves much of the financial risk to an insurer.

According to Birketts' guidance on restrictive covenants, most policies cover a range of matters linked to a breach of covenant claim, including the costs of defending it, any loss in market value and the costs of settling. Every policy has a limit on what it will pay, and the limit has to be matched to the scheme it is meant to protect.

• Contact with the beneficiary. Birketts warns that approaching anyone who might have the benefit of a covenant can invalidate existing cover and can prevent new cover from being arranged. An insurer is pricing the chance of a claim, and a beneficiary who has been told about the scheme changes that chance.
• A use without planning permission. Cover is harder to obtain, and more expensive, where the insurer is asked to cover a use that does not yet have planning permission.
• Timing. Birketts concludes that steps of this kind are usually effective only if they are put in place early in the development process.

The second and third points pull in different directions, which is why the order of work needs thought. Insurance is easiest to arrange before anyone with the benefit hears of a scheme, yet cover is easier to obtain for a use that already has planning permission, and a planning application is itself public. How those are sequenced is decided case by case, with the covenant, the likely beneficiaries and the planning route in view together.

The tribunal's guide says the owner of land, freehold or leasehold, that is subject to a restrictive covenant may apply. It has no power over positive covenants, which are promises to do something, such as maintain a fence, or over easements, which are rights such as a right of way. The tribunal must be satisfied of at least one of the grounds in section 84(1) of the Law of Property Act 1925. The Supreme Court called them the jurisdictional grounds, counting five, because ground (aa) has two separate limbs.

Showing a ground opens the door; it does not decide the case. The tribunal still has a discretion whether to discharge or modify, and the Supreme Court said that the applicant's conduct is weighed at that second stage. The tribunal can also order compensation to the people with the benefit, either for the loss or disadvantage the change causes them or for any reduction the covenant made in the price when the land was originally sold. Under section 84(1C), it can modify a covenant by adding new restrictions that the applicant accepts, for example limiting the number or height of homes, and it may refuse to modify without them.

Ground (aa) asks the question that fits most housing schemes: whether a reasonable use is blocked, and what the covenant really gives the neighbours. Ground (a) suits covenants that have outlived their purpose, as in the Ealing case. Ground (c) can be argued alongside either, and the Ealing tribunal found it made out as well.

The Law Commission's 2011 report recommended reforms that would extend the tribunal's power to positive obligations and to new easements, and recommended that future covenants take effect as a new kind of right called land obligations. Those were recommendations; the grounds above are the law a section 84 application is decided on.

The tribunal's own guidance, updated in July 2026, sets out the procedure step by step but gives no overall timescale. The fixed steps it lists already take months before a contested case can reach a hearing.

1. Lodge the application. On the tribunal's form, with supporting documents and the lodging fee.
2. Publicity. A registrar approves a notice of the application, served by newspaper advertisement, a notice on the site, post, or a mix. The applicant certifies that it has been done, no earlier than 28 days after service.
3. Objections. Anyone claiming the benefit has one month from service to object. The applicant then has 14 days to say whether it accepts each objector's entitlement, and a dispute about entitlement can be decided first.
4. No objections. The tribunal asks whether the applicant wants a decision without a hearing, and can decide the application on paper.
5. Evidence. In a contested case, expert reports and witness statements, usually allowed two months.
6. Hearing and decision. The decision is normally reserved, and the guidance says it is given in writing a few weeks after the hearing. If the application succeeds, the tribunal draws up an order, which is lodged with HM Land Registry.

The tribunal fees are modest; the professional costs and the costs rules are what make the route a considered decision. The tribunal's guide is direct about costs: successful objectors will generally be awarded their reasonable costs, while successful applicants cannot expect to be awarded theirs, and only in exceptional circumstances is an applicant ordered to pay the costs of an unsuccessful objector. An unopposed application decided on paper is a very different undertaking from a contested hearing with expert evidence.

In 1972 a farmer sold land subject to covenants that it would never be built on and would be used only for car parking. Decades later, a developer bought that land with neighbouring unencumbered land, knowing of the covenants, and obtained planning permission in March 2014 for affordable homes, 13 of them on the covenanted land. Meanwhile the farmer's son had given adjoining land to a charity for a children's hospice. The developer carried on building after the objection and only then applied to the tribunal to modify the covenants.

1. The Upper Tribunal allowed the application on the public interest limb of ground (aa), because the 13 homes were built and needed, on payment of compensation to the charity.
2. The Court of Appeal reversed that decision, holding that the developer's deliberate breach was relevant to whether the ground was made out at all.
3. The Supreme Court, in a judgment by Lord Burrows on 6 November 2020, dismissed the appeal, but for different reasons. It held that conduct is irrelevant to whether a ground is established, which is a narrow question about the public interest, but highly relevant to the tribunal's discretion.
4. The result. The tribunal had failed to weigh two things: the developer could have built on its unencumbered land, and it had presented the tribunal with a fait accompli. The decision was remade, and the application refused.

For a landowner, the lesson is simple and works in your favour if you follow it. The courts expect a covenant to be dealt with before building, by agreement, insurance or an application, not after. A scheme that respects the covenant process from the start is judged on its merits. A scheme that tries to force the issue risks losing the argument it would otherwise have won.

You can learn a good deal about a covenant from your own papers before anyone else is involved. These are the points that decide which route, if any, is needed.

• The charges register entry, and the date and parties of the deed it refers to.
• The exact wording: an outright ban, a limit on numbers or height, or a requirement for someone's consent.
• Whether the deed defines the land meant to benefit, by a plan or a clear description.
• Whether the covenant was made before 1926 or after 1925.
• Whether the person whose consent is needed is a named individual or a company that may no longer exist.
• What has happened to the benefited land since: sold, split into plots, built on.
• Whether anyone has ever raised the covenant with you or a previous owner.
• Whether the land was once part of an estate sold off in plots on matching terms, which can point to a building scheme.

Keep a note of anything you find, but do not write to the neighbours or the people named in the deed to ask about it. As explained above, a well-meant enquiry can close off the insurance route.

When we carry out a free desktop review of your land, the title is one of the things we look at, using public information. A covenant on the register is part of that review, alongside access, constraints and the council's position, and our answer tells you plainly what the main hurdles would be. We do not contact the council, your neighbours or anyone else about your land without your agreement. Our page on how it works sets out the stages, and you can ask for a free desktop review of your own land at any time.

A covenant is not the only private right that can affect a scheme. A strip of land you need for access, or a neighbour's right of way across the field, is a different legal animal, explained in our guide to access and ransom strips. A promise to pay money on a future sale is a positive covenant, the subject of our guide to overage.