Restrictive Covenants When Selling a House

When you sell a property in England or Wales, the buyer's solicitor will carry out a detailed review of your title — checking who owns the property, what rights exist over it, and what restrictions apply. One of the most common issues that arises during this process is the discovery of restrictive covenants: legally binding conditions that limit what you, or any future owner, can do with the property.

For many sellers, restrictive covenants are an unexpected complication. You may not even know they exist until your solicitor reviews the title or the buyer's solicitor raises conveyancing enquiries about them. In some cases, the covenant is harmless and irrelevant to the sale. In others, particularly where the covenant has been breached, it can cause delays, renegotiation, or — if handled badly — a sale falling through.

This guide explains what restrictive covenants are, how they appear on your title, the most common types you will encounter, and what to do if a covenant could affect your sale.

Can you sell a property with a restrictive covenant?

Yes, you can sell a property with a restrictive covenant — most buyers and their solicitors encounter them regularly, and they are one of the most common entries on residential titles across England and Wales. The presence of a covenant on your title does not, in itself, prevent a sale from proceeding. The key question is not whether a covenant exists, but whether it has been breached.

There are three broad scenarios your solicitor will consider:

1. The covenant exists but has not been breached. This is the most straightforward position. If the terms of the covenant have always been observed, the sale proceeds normally. The buyer's solicitor will note the covenant, confirm it has not been breached, and move on. No insurance or further action is needed.
2. The covenant exists and may have been breached historically. This is the most common problem scenario. For example, a previous owner may have built an extension in breach of a "no alteration" covenant twenty years ago. In practice, this is usually resolved by obtaining an indemnity insurance policy, which protects the buyer and their mortgage lender against the risk of future enforcement action. The policy is a one-off cost, typically between £50 and £300, and can be arranged quickly by your solicitor.
3. The covenant exists and is actively being enforced. This is rare, but it can delay or even block a sale. If the person or organisation entitled to enforce the covenant is aware of a breach and is pursuing legal action or threatening to do so, the buyer's solicitor will want the matter fully resolved before exchange. Indemnity insurance may not be available in these circumstances, and the issue may need to be addressed through negotiation with the covenantee or an application to the Upper Tribunal.

It is worth noting that many restrictive covenants are decades old, imposed when large estates were broken up in the early to mid-twentieth century. In a significant number of cases, the original covenantee — the person or organisation that benefited from the restriction — is no longer identifiable or has long since ceased to have any practical interest in enforcing the covenant. While these covenants remain technically binding, they are often considered unenforceable in practice, and the risk of anyone taking action is minimal.

The buyer's solicitor will check the Charges Register (Section C) of your title at HM Land Registry to identify any covenants affecting the property. This is a standard part of the conveyancing process, and sellers should expect covenants to be flagged and discussed during the enquiry stage.

What is a restrictive covenant?

A restrictive covenant is a condition imposed on a piece of land by a previous owner (the covenantor) for the benefit of another piece of land (the benefiting land). The covenant restricts what the owner of the burdened land can do — for example, they may not be allowed to build above a certain height, run a business from the premises, or subdivide the property.

Restrictive covenants are created by deed — typically as part of a sale or transfer of land. Once registered, they are recorded on the property's title at HM Land Registry and bind all future owners of the land, not just the person who originally agreed to them. This means that if a previous owner of your property agreed to a restrictive covenant decades ago, you are still bound by it today.

The legal basis for restrictive covenants running with the land comes from the 1848 case of Tulk v Moxhay and is now governed by the Law of Property Act 1925. Under section 84 of the Act, a property owner can apply to the Upper Tribunal (Lands Chamber) to have a restrictive covenant discharged or modified if it meets certain criteria.

How restrictive covenants appear on your title

When your property is registered at HM Land Registry, the title register is divided into three sections. Restrictive covenants appear in Section C — the Charges Register. This section records all encumbrances, restrictions, and obligations that affect the property.

A typical Charges Register entry for a restrictive covenant will refer to the deed or transfer document that created it, along with a summary of the restriction. For example:

"The land is subject to the restrictive covenants contained in a Transfer dated 15 March 1972 made between (1) Smith and (2) Jones."

To see the full wording of the covenant, you may need to obtain a copy of the original deed from HM Land Registry. Your solicitor will do this as part of the conveyancing process and will explain what the covenant means in practical terms. For a fuller explanation of what your title contains, see our guide to Land Registry searches.

Common types of restrictive covenant

Restrictive covenants vary enormously depending on when they were created and the circumstances of the original land transfer. The following table sets out the most common types that arise in residential sales in England and Wales.

Many restrictive covenants date from the early to mid-20th century, when large estates were broken up and sold in individual plots. The original developer imposed covenants to maintain the character and value of the estate. Some of these covenants now seem outdated, but they remain legally binding unless formally discharged.

When a restrictive covenant becomes a problem for your sale

The existence of a restrictive covenant on your title is not, by itself, a problem. Most residential properties have at least one covenant on the title, and many are entirely benign — they simply confirm that the property must be used as a dwelling, or that the owner must maintain the boundary fences. These rarely cause any concern for buyers or their solicitors.

A covenant becomes a problem in two main situations:

• The covenant has been breached. If you or a previous owner did something the covenant prohibits — such as building an extension without consent, or running a business from the property — the buyer's solicitor will want the breach resolved before exchange. The concern is that the person entitled to enforce the covenant (the covenantee) could take legal action, seek an injunction to reverse the breach, or claim damages.
• The covenant restricts the buyer's plans. Even where there is no breach, a covenant may limit what the buyer intends to do with the property. For example, a "no alteration" covenant could prevent a buyer from extending the kitchen — a change they may have factored into their offer price. This may lead the buyer to renegotiate, add conditions, or withdraw.

In both cases, the issue typically surfaces during the enquiry stage, when the buyer's solicitor reviews the title and raises questions with your solicitor. Being prepared for these questions is essential. Understanding what you need to disclose when selling helps you get ahead of potential issues.

What to do if a covenant has been breached

If a restrictive covenant on your property has been breached, whether by you or a previous owner, you have several options for dealing with it before or during the sale:

1. Obtain indemnity insurance

This is by far the most common solution. Your solicitor arranges a one-off indemnity insurance policy that protects the buyer, their mortgage lender, and future owners against financial loss if the covenantee takes enforcement action. The policy typically costs between £50 and £300 for a standard residential property and can be arranged within a working day.

Indemnity insurance is practical because it avoids the cost, delay, and uncertainty of trying to formally resolve the breach. It is accepted by most mortgage lenders, and the buyer's solicitor will usually be satisfied provided the policy covers the full value of the property and any potential remediation costs.

There is one important condition: indemnity insurance is only available if no approach has been made to the covenantee about the breach. If you or anyone else has already contacted the person or organisation entitled to enforce the covenant, the insurer may refuse to provide cover. This is why solicitors always advise against approaching the covenantee before insurance has been explored.

2. Seek a formal release from the covenantee

If you can identify who benefits from the covenant, you can ask them to formally release or waive it by deed. This provides a permanent solution and removes the restriction from the title entirely. However, the covenantee is under no obligation to agree, and they may ask for a financial payment in return. This route is also slower than insurance and may not be practical if the covenantee is difficult to trace.

3. Apply to the Upper Tribunal for modification or discharge

Under section 84 of the Law of Property Act 1925, you can apply to the Upper Tribunal (Lands Chamber) to have the covenant modified or discharged. The Tribunal will consider whether the covenant is obsolete, whether it provides any practical benefit to the person entitled to enforce it, whether its discharge would injure that person, and whether money would be adequate compensation. This route is expensive and slow — applications can take six to twelve months and cost several thousand pounds in legal fees — so it is rarely used during an active sale.

4. Do nothing and hope the buyer accepts the position

In some cases, particularly where the breach is minor and historical, the buyer and their solicitor may accept the position without requiring insurance or further action. This is unusual in practice, because most solicitors are risk-averse and will want the issue formally addressed, but it can happen where the covenant is clearly obsolete and there is no identifiable person who could enforce it.

How restrictive covenants affect the conveyancing process

From a seller's perspective, restrictive covenants typically affect the conveyancing process in the following way:

1. Your solicitor reviews the title. When you instruct your solicitor, they obtain the title register and associated documents from HM Land Registry. They identify any restrictive covenants and assess whether they have been complied with.
2. Covenants are disclosed to the buyer. The title documents, including any covenants, are provided to the buyer's solicitor as part of the draft contract package. You also disclose relevant information in the TA6 Property Information Form and the TA7 (for leasehold properties).
3. The buyer's solicitor raises enquiries. If a covenant appears to have been breached, or if it restricts something significant, the buyer's solicitor will raise enquiries asking for details and a proposed solution.
4. Your solicitor responds with a solution. Typically, your solicitor will propose an indemnity insurance policy and obtain a quotation from their panel insurer. The policy is then provided to the buyer's solicitor for approval.
5. Exchange proceeds. Once the buyer's solicitor and their mortgage lender are satisfied with the insurance (or other resolution), the enquiry is closed and the sale can proceed to exchange of contracts.

The entire process usually adds one to two weeks to theconveyancing timeline if the issue is straightforward, but can take longer if the buyer's solicitor has concerns about the adequacy of the insurance or the nature of the breach.

Restrictive covenants vs positive covenants

It is important to understand the difference between restrictive and positive covenants, because they work differently in law and affect your sale in different ways.

A restrictive covenant prevents the property owner from doing something. It "runs with the land" — meaning it automatically binds every future owner of the property, regardless of whether they personally agreed to it.

A positive covenant requires the property owner to do something, such as maintain a fence, contribute to the upkeep of a shared driveway, or keep a building in good repair. Positive covenants do not automatically bind future owners of freehold land under current English law. This means that when a freehold property is sold, positive covenants can become unenforceable against the new owner — which creates its own set of complications in conveyancing.

From a seller's perspective, restrictive covenants are the more significant concern because they are the ones that will definitively bind your buyer and that the buyer's solicitor will scrutinise most carefully.

Preparing for restrictive covenant issues before you list

As a seller, you can take several practical steps before listing your property to reduce the risk of covenant-related delays:

• Obtain a copy of your title register. You can download your title register and title plan from HM Land Registry for £3 each via the GOV.UK website. Review the Charges Register (Section C) for any restrictive covenants and make a note of them.
• Check for breaches. Review the wording of each covenant and consider whether you or a previous owner has done anything that could constitute a breach. Common breaches include building an extension, converting a garage, or adding a driveway where the covenant restricts alterations.
• Instruct your solicitor early. The earlier your solicitor reviews the title and identifies potential issues, the more time they have to arrange indemnity insurance or explore other solutions before the buyer's solicitor raises enquiries.
• Be honest in your property information forms. The TA6 form asks about alterations, planning permissions, and building control approvals. If a covenant was breached by building work, the buyer's solicitor will almost certainly connect the dots. Answering honestly from the outset protects you legally and builds trust with the buyer.
• Do not contact the covenantee. If you suspect a breach, resist the temptation to approach the person or organisation that benefits from the covenant. Doing so can alert them to the breach and may make it impossible to obtain indemnity insurance afterwards. Always take your solicitor's advice before making contact.

Pine helps sellers identify these kinds of issues early by guiding you through your property information forms before you list. By surfacing potential covenant concerns at the preparation stage, your solicitor has time to arrange insurance or other solutions well in advance of any buyer enquiry.

Can the buyer walk away because of a restrictive covenant?

Before exchange of contracts, the buyer can withdraw from the transaction for any reason — including concerns about a restrictive covenant. There is no obligation on a buyer to proceed, and if they discover a covenant that conflicts with their plans for the property, they may choose to pull out.

After exchange, the position changes. The buyer is contractually committed to the purchase, and restrictive covenants on the title are treated as matters the buyer is deemed to have accepted. This is because the buyer's solicitor had the opportunity to review the title and raise enquiries before exchange.

The practical takeaway for sellers is this: resolve covenant issues before exchange, not after. If you leave a covenant breach unaddressed and the buyer's solicitor raises it at a late stage, you risk the sale collapsing. Arranging indemnity insurance early removes this risk and keeps the transaction on track.

Sources and further reading

• HM Land Registry — Practice Guide 19: notices, restrictions, and the protection of third-party interests: gov.uk/government/publications/notices-restrictions-and-the-protection-of-third-party-interests
• Law of Property Act 1925, section 84 — Power of the Tribunal to discharge or modify restrictive covenants: legislation.gov.uk/ukpga/Geo5/15-16/20/section/84
• Upper Tribunal (Lands Chamber) — Applications to modify or discharge restrictive covenants: gov.uk/courts-tribunals/upper-tribunal-lands-chamber
• HM Land Registry — How to obtain copies of the title register and title plan: gov.uk/search-property-information-land-registry
• Law Society — Conveyancing protocol and guidance notes for property transactions: lawsociety.org.uk
• UK Finance Mortgage Lenders' Handbook — Individual lender requirements for restrictive covenant issues: lendershandbook.ukfinance.org.uk

Related guides

• Selling an Ex-Council Property: What to Consider

Frequently asked questions