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Restrictive covenants place very specific limitations on how a property can be used or modified. Examples that we see include covenants that prevent any change of use, limit changes to the property itself, or restrict any future development of a piece of land. Written into the title deeds, typically by the original sellers looking to protect their retained land, restrictive covenants often remain legally binding and enforceable against successive owners, with the full effect of the restriction only becoming apparent many years later when a breach takes place. No matter the age or nature of the covenants, and however reasonable the planned changes to a property or land may seem, a legal dispute can still arise when a third party claiming the benefit to enforce the covenants objects to a proposed breach.

The continued importance of covenants was brought into sharp focus in the last year by two legal rulings. Both examples demonstrate how difficult it can be to relax or amend restrictive covenants once they are imposed, and the impact they can have on changes proposed by the property owner.

Hassan & Osman v Heath

The Upper Tribunal’s ruling in Hassan & Osman v Heath case in 2025 demonstrated, once again, how restrictive covenants have the potential to significantly impact, or even prevent, proposed developments or alterations to a property, even where planning permission has already been granted. This dispute revolved around a restrictive covenant imposed in 1986, which prohibited alterations to the external elevation of a two-storey Victorian house owned by Mr Hassan and Dr Osman. Although aware of the restriction when they bought the two-bedroom property in 2017, the couple always intended to extend it and had been advised that the existence of the covenant wouldn’t prevent their plans. 

Several years later, the couple submitted a planning application for a single-storey side extension on the ground floor, along with a loft conversion and roof extension to create a third bedroom. The owner of the neighbouring property, Mr Heath, objected to their plans, but despite this, the council were still happy to grant planning permission in January 2024.

Before starting the works, Mr Hassan and Dr Osman served Mr Heath with a required Party Wall notice. His response was a formal letter threatening an injunction if the works proceeded. The couple went ahead with the building work regardless, so Mr Heath applied for and successfully obtained the injunction, which halted construction midway through the ground-floor works. Faced with an injunction effectively freezing their project, Mr Hassan and Dr Osman made an application to the Upper Tribunal to modify the covenant to permit the alterations and allow the works to resume. 

Split decision

The Tribunal considered the ground floor works and the roof works as two separate issues. On the question of the ground-floor extension, the Tribunal concluded that the works would not have a substantial and detrimental impact on Mr Heath’s property, and modified the covenant to permit their completion. However, it took a different view on the roof works. The Tribunal found that the proposed loft conversion and roof extension would have a “significantly overbearing effect” on Mr Heath’s garden and conservatory and refused to modify the covenant in that respect. The ruling left both parties with a partial victory, and although neither achieved the full result that they were looking for, both will have been left with substantial legal bills, along with the stress caused by the dispute.

Farrell v Garforth-Bles and Bishop’s Mansions Ltd

Another ruling in 2025, Farrell v Garforth-Bles and Bishop’s Mansions Limited, highlights the different factors that the Upper Tribunal take into account when making their decision.

The case concerned a detached property in Fulham, which had a restrictive covenant imposed on it in 1983 for the benefit of the neighbouring mansion block. It limited the use of the property to professional offices or private residential (while also specifically prohibiting various “undesirable” uses, which included retail, restaurant or snack bar). The ground-floor had been let to an estate agent, but the commercial tenancy had expired and the property had been vacant since 2023.

The property owner applied to the Upper Tribunal for a modification of the covenant to allow a wider range of uses for the property. He explicitly excluded certain uses which might generate significant noise or nuisance for neighbouring residents, but he proposed the sale of hot and cold non-alcoholic drinks and light food between 8am and 7pm.

The modification application was objected to by the residents of the mansion block, on the basis that the use of the premises for a coffee shop or café would result in an increase in noise and disturbance, and a decrease in privacy for the residents. They were happy to allow an alternative medical use, but not a wider relaxation of the covenants, as intended.

The Upper Tribunal accepted that on a busy mixed-use road in south west London, one more coffee shop was unlikely to cause significant extra traffic or noise, particularly if any outdoor seating area faced the road. However, the property had a private garden, and following a site visit, the Tribunal felt it would inevitably become a busy space if the property were used as a coffee shop. The property also had a right of way over the communal gardens within the grounds of the mansion block, which could potentially be used by customers, who would then have access to the residents’ private courtyards and sheds. As a result of these factors, the Upper Tribunal concluded that the covenant did protect the residents of the mansion block from nuisance, lack of privacy and security concerns, and did "provide a practical benefit of substantial value or advantage". The application to have the covenant modified failed.

In good hands

Both these rulings clearly highlight the impact restrictive covenants can have when they’re enforced, and how difficult they can be to amend - no matter how reasonable the request may seem. 

So, where restrictive covenants are present, whether you have a buyer planning to build an extension to a residential property, a developer planning to convert and develop a commercial building into student accommodation, or a large new-build residential development on vacant land, our experienced underwriters can help.

What’s covered

Our restrictive covenant policies cover the costs of defending any legal claim against the policyholder, and negotiating for a release or modification of the covenants if they are deemed legally enforceable. If the third-party claim successfully prevents the proposed use and/or building work, the policy will also cover the expense of complying with an injunction, along with any reduction in market value of the property/land, and any abortive costs that may be incurred (such as surveyor or architect’s fees).     

Our policies can cover the breach of known covenants, but also the potential breach of unknown restrictive covenants. In situations where the title deeds have been lost or may be incomplete, missing pages could potentially contain all manner of covenants, which a buyer or developer could unknowingly breach by changing the use of the property after completion, or undertaking their proposed works.

Whatever kind of restrictive covenant issue you’re facing, our policies provide a cost effective, quick and efficient alternative to approaching the benefitting third parties or the Lands Tribunal for a modification of the covenants. Call our underwriters on 01603 761515, email enquiries@isisconveyancing.co.uk, or sign in to ICON.