It is not uncommon to find that a piece of land is burdened by a restrictive covenant that it may not be used so as to cause a nuisance or annoyance to neighbouring land. Andy King, Partner in the Real Estate Team, considers the question whether such a restrictive covenant restricts the activities going on at a property or prevents the construction of a building itself?
This was the question asked in a recent case where it was held that the construction of an extension which would block the view of the sea from neighbouring properties would constitute causing a nuisance or annoyance to those properties and would therefore be in breach of the restriction.
Previously, it was understood that a restrictive covenant of this sort was concerned with the ‘goings on’ at a property, burning bonfires or the playing of loud music for example, but it is now clear that the courts will look further than this.
The test that the courts will apply is whether “reasonable people, having regard to the ordinary use of the house for pleasurable enjoyment would be annoyed or aggrieved by what is being done”. Following an earlier case, this must be assessed objectively by robust and common sense standards. The proposed extension (once built) would continue to be an annoyance and an injunction to prevent it being built was granted. It is important to note that this was despite the fact that the owner had obtained planning permission for the building works.
This has certainly moved the goalposts and it is now even more important to take legal advice on whether there are matters registered against your land that may prevent the activity for which you want to use your property.
For further information on this or any other property issue, please contact Andy King by emailing Andy or by calling him on 08450 990045, or speak to your usual contact in the Real Estate Team.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.