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.
Wisconsin Amendment to Protective Covenant
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As restrictive covenants don't 'expire', if they are breached the person with the benefit of the covenant can enforce them against you.
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.
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.
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.
By way of agreement; By way of drawing up a Deed of Release of Restrictive Covenant or; By applying to the Upper Tribunal to have the covenant removed, if it meets certain criteria, such as, the beneficiary is unknown, the covenant cannot be enforced or the covenant is unreasonable.
They are used exclusively for residential properties. They are permanent and unchangeable. If a subdivision is in a zoned area, any restrictive covenants take priority over zoning ordinances to the extent that the covenants are more restrictive than the zoning requirements.
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 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.
Generally, it is difficult to enforce a breach of covenant after 20 years. The Limitation Act 1980 also states that claims in land should be brought within 12 years. However, the time starts to run from when the breach occurs, not the date of the deed.
How long do restrictive covenants last? Some covenants are given a set expiration date, which is listed in the deed or a secondary document called the "List of covenants, conditions and restrictions". Otherwise, they may not have an expiration date and can last indefinitely.