In a deed, a grantee may agree to do something or refrain from doing certain acts. This agreement will become a binding contract between the grantor and the grantee. An example would be an agreement to maintain fences on the property or that the property will only be used for residential purposes. This kind of covenant is binding, not only between the grantor and the grantee, but also runs with the land. This means that anyone acquiring the land from the grantee is also bound by the covenant of the grantee. A covenant that provides that the grantee will refrain from certain conduct is called a restrictive or protective covenant. For example, there may be a covenant that no mobile home shall be placed on the property.
A restrictive or protective covenant may limit the kind of structure that can be placed on the property and may also restrict the use that can be made of the land. For example, when a tract of land is developed for individual lots and homes to be built, it is common to use the same restrictive covenants in all of the deeds in order to cause uniform restrictions and patterns on the property. For example, the developer may provide that no home may be built under a certain number of square feet. Any person acquiring a lot within the tract will be bound by the restrictions if they are placed in the deed or a prior recorded deed. Also, these restrictive covenants may be placed in a document at the outset of the development entitled "Restrictive Covenants," and list all the restrictive covenants that will apply to the tracts of land being developed. Any subsequent deed can then refer back to the book and page number where these restrictive covenants are recorded. Any person owning one of the lots in the tract may bring suit against another lot owner to enforce the restrictive covenants. However, restrictive covenants may be abandoned or not enforceable by estoppel if the restrictive covenants are violated openly for a sufficient period of time in order for a Court to declare that the restriction has been abandoned.
The following form shows one way in which Restrictive or Protective Covenants may be amended.
Missouri Amendment to Protective Covenant
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Breaching a restrictive covenant leaves you open to potential legal action from the other party, if they wish to enforce the covenant. If you are taken to court and the other party is successful, you might have to undo any work carried out and may face a fine or have to pay damages, as well as legal fees.
If there is a restrictive covenant on your property you may be able to remove it. The first step would be to negotiate with the original developer or landowner to enter into a formal agreement to remove the covenants from the title.
Covenants usually arise in a contractual agreement between the buyer and seller of the land. So long as the covenant is correctly worded to 'attach' to the land itself, it continues to apply if the land is sold on, unless it has been modified or discharged. Covenants are legally binding and enforceable by the court.
In the remaining jurisdictions, a covenant is enforceable only if it serves a legitimate purpose and is reasonable in scope, geography and time. These limitations vary from state to state, but the following legal framework is common across most jurisdictions.
Although this case relates directly to development of property, it is clear that modifying restrictive covenants of any nature or kind is possible if deemed reasonable in the circumstances by the courts, which will of course be determined on a case-by-case basis.
What fees will I have to pay? The Lands Chamber is required by law to charge fees. The fee for lodging an application to discharge or modify restrictive covenants is £880. The fee for hearing an application is A£1,100, but this is reduced to A£275 if the Tribunal determines the application without a hearing.
Can I get a restrictive covenant removed? If there is a covenant on your property which is obsolete, you can make an application to the Upper Tribunal (Lands Chamber) (which use to be known as the Lands Tribunal) asking for the covenant to be discharged or modified.
If there is a covenant on your property which is obsolete, you can make an application to the Upper Tribunal (Lands Chamber) (which use to be known as the Lands Tribunal) asking for the covenant to be discharged or modified.
Typically, courts tend to enforce restrictions of between 6 and 12 months, depending upon the seniority of the employee concerned and their access to confidential information and clients. This is subject, of course, to the covenants being reasonable and necessary to protect a legitimate business interest.
Are covenants legally enforceable? Restrictive covenants are usually legally enforceable and binding if they have been set up properly, but can cease to be enforceable after a period of time in some circumstances.