Freehold Covenants

Freehold land can be either registered at HM Land Registry or unregistered (meaning the owner of the land will hold a bundle of paper deeds).

Third-party interests on freehold land refer to any rights or claims that exist over the land owned by the freeholder. Those interests can include easements, restrictions, notices, mortgages and covenants. In short, legal rights that affect the use and enjoyment of the land. The Land Registration Act 2002 (LRA 2002) provides a framework for protecting these interests.

Freehold covenants are a type of contractual promise concerning land. ‘Restrictive covenants’ can be enforced against future owners of the land, in contrast to ‘positive covenants’ which can only be enforced against the person who made the promise.

A restrictive covenant (also known as a negative covenant) consists of an agreement in a deed that one party will restrict the use of its land in some way for the benefit of another’s land. For example, a restrictive covenant might:

• limit possible uses of the land (for example, to residential purposes only)
• prohibit trades or businesses operating on the land
• forbid undesirable activities or potential nuisances
• restrict the number or type of buildings that can be erected, or require observance of a building line, or restrict the height of new buildings

A positive covenant imposes an obligation on one landowner to carry out some positive action in relation to land and/or requires expenditure of money. For example, a positive covenant might require:

• works of repair or maintenance.
• erection of buildings or boundary fences.

This distinction between positive and restrictive covenants is important. The burden (that is to say, the obligation to observe a covenant) does not generally bind successors in title where a covenant is positive in nature, but it may do so if the covenant is restrictive. 

This briefing deals only with freehold covenants (not leasehold covenants, which operate under a wholly different legal regime). The term ‘land’ is used throughout this briefing to denote all freehold property.