Restrictive covenants, easements and rights of way on a UK property

The terms on a title

The register often summarises a covenant by reference to an old conveyance. An official copy of a document referred to in the register (form OC2) costs £11 by post or £7 through the portal. How the register is laid out is explained in the title register.

Removing or changing a restrictive covenant

The owner of freehold land subject to a restrictive covenant can apply (for leasehold land, only under a lease of more than 40 years, once 25 years of it have passed: section 84(12)) to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925. The tribunal can discharge or modify the covenant if it is satisfied that:

• because of changes in the property, the neighbourhood or other circumstances, the restriction ought to be deemed obsolete;
• it impedes a reasonable use of the land and either gives no practical benefit of substantial value to those entitled to it, or is contrary to the public interest, and money would be adequate compensation;
• those entitled to the benefit have agreed, expressly or by implication; or
• the change will not injure those entitled to the benefit.

The tribunal can order the applicant to pay compensation. It takes into account the development plan and the pattern of planning decisions in the area.

The procedure (guide T608):

1. Apply on form T379 with the documents it lists and the fee.
2. The tribunal directs how notice is given to owners who may benefit: newspaper advertisement, notices on the land or a publicity notice (T380).
3. Objectors file form T381 within one month of the notice. Objecting is free.
4. Within 14 days of each objection, the applicant says whether they accept the objector’s entitlement; any dispute is decided first.
5. Hearing, usually at the Royal Courts of Justice in London, with a site inspection, or a decision on paper if nobody objects.

Costs. Successful objectors are generally awarded their reasonable costs; successful applicants “cannot however expect to be awarded their costs”.

The tribunal cannot discharge positive covenants or easements such as a right of way.

Easements: how they are created and registered

• Express grant over registered land must be completed by registration to take effect at law (Land Registration Act 2002, section 27): a notice in the register of the land burdened and, if the benefiting land is registered, an entry in its register. The HM Land Registry fee for registering the grant of an easement is £40, or £20 online.
• Implied and prescriptive easements do not need registration to take effect and are almost always overriding interests: they bind a buyer even though they are not on the register. They can be registered under rule 73A of the Land Registration Rules 2003.
• A legal easement that is not on the register can be lost on a registered sale only if the buyer did not know of it, it was not obvious on a reasonably careful inspection, and it had not been used within 1 year before the sale.

Prescription (practice guide 52). An easement can be acquired through long use, under common law, lost modern grant or the Prescription Act 1832. In every case the use must:

• last at least 20 years;
• be as of right: without force, without secrecy and without permission;
• be by or on behalf of one freehold owner against another;
• be continuous (long unexplained gaps prevent it);
• be for a right that could lawfully have been granted.

The claim to HM Land Registry is supported by a statement of truth or statutory declaration describing the use; an inspection fee may be added.

Public rights of way (England)

GOV.UK says the local authority normally keeps a definitive map, a legal record of public rights of way in 4 categories: footpaths, bridleways, restricted byways and byways open to all traffic. An owner must keep them clear: obstructing a public right of way is a criminal offence, and the highway authority can remove an obstruction and recover the cost. A field-edge footpath must keep at least 1.5 metres undisturbed, a field-edge bridleway 3 metres. Ask your conveyancer which property searches cover the area around the home.

Scotland

Scots law has its own terms and rules: covenants are real burdens, governed by the Title Conditions (Scotland) Act 2003 (discharge by the Lands Tribunal for Scotland), and easements are servitudes. Under section 3 of the Prescription and Limitation (Scotland) Act 1973, a servitude or a public right of way is established by 20 years’ open, peaceable and uninterrupted use. Payotte did not review the Scottish rules on these rights for this guide.

Which professional to consult

A conveyancer reads the covenants and easements on the title and the deeds they refer to, and says whether a planned extension or use would breach them. A surveyor can check on site whether a path, drain or access is used, which matters for an unregistered easement. An application to the Upper Tribunal usually involves a solicitor and, where compensation is in issue, a valuer. For a dispute about where the line runs rather than about rights over it, see property boundaries.