Can A Neighbour Enforce A Restrictive Covenant?

Can A Neighbour Enforce A Restrictive Covenant?

Can A Neighbour Enforce A Restrictive Covenant

Yes, a neighbour can enforce a restrictive covenant, but only under certain conditions. A neighbour can enforce a restrictive covenant only if they are the landowner and therefore the person entitled to the benefit of the covenant.  This means that the neighbour must have a direct connection to the covenant, typically through ownership of a property that benefits from the covenant

If the neighbour is not the landowner that benefits from the covenant, they cannot enforce it. It’s important to note that enforcing a restrictive covenant can be a complicated process and typically requires professional input

If a restrictive covenant is successfully enforced by a neighbour through the courts, the party in breach may have to meet the innocent party’s legal costs and restore the property to its previous condition.

In communities with restrictive covenants but no owner’s association, it is up to the individual owners alone to enforce the restrictive covenants against other property owners.

However, most enforcement of restrictive covenants is now carried out by the appropriate owners association.

Courts will not blindly uphold all restrictive covenants and may not enforce them if it would infringe on civil liberties or if the party seeking enforcement lacks standing.

For example, covenants that impose racial or religious restrictions after the sale of a property are unenforceable.

Note that while a neighbour can enforce a restrictive covenant, they must be the landowner that benefits from the covenant, and the enforcement process can be complex and potentially costly. It’s always advisable to seek professional advice when dealing with restrictive covenants.

Here is a summary of information on the topic of whether a neighbor can enforce a restrictive covenant:

  • A neighbor can only enforce a restrictive covenant if they are the landowner that benefits from the covenant. A neighbor with no direct connection to the covenant cannot enforce it.
  • The original parties to the covenant and subsequent owners of the benefitting land can enforce restrictive covenants. The covenant “runs with the land”.
  • To enforce a covenant, the benefitting landowner can seek an injunction to stop the breach or claim damages for loss caused by the breach. It is advisable to act promptly.
  • Challenging or removing restrictive covenants is complex. Grounds include the covenant becoming obsolete over time or changes to the property/neighborhood.
  • Restrictive covenants should be identified during conveyancing when buying a property. They legally bind the current and future owners.
  • Tenants generally cannot enforce restrictive covenants attached to a property. Only landlords as owners of the land can take enforcement action.

Enforcing Restrictive Covenants Property

A restrictive covenant is a condition that restricts, limits, prohibits, or prevents the actions of someone named in an enforceable agreement.

These covenants are common in real estate transactions and apply to a variety of situations, from the colors you can paint your house to how many tenants can live in a building.

Here are some key points about enforcing restrictive covenants on property:

  • Restrictive covenants are legally binding obligations affecting land. They restrict how the current and future owners can use their property.
  • The original parties to a covenant and subsequent owners of the benefitting land can enforce covenants. The right to enforce “runs with the land”.
  • To enforce a covenant, the benefitting landowner can seek a court injunction to stop the breach or sue for damages caused by the breach. Acting promptly on a breach is advisable.
  • Grounds for challenging covenants include changes over time making the covenant obsolete or alterations to the property/neighborhood. This involves a legal application.
  • Most covenants are enforced privately between neighbors. But some are enforced by developer management companies over housing estates.
  • Identifying restrictive covenants early when buying a property is key. They should be revealed during conveyancing searches.
  • Ignoring a covenant risks enforcement action. But some obsolete covenants remain unenforced as the benefitting owner is difficult to trace.
  • Enforcing covenants can be complex and expert legal advice should be sought. The outcome depends on the specific property and covenant terms.

Remedies For Breach Of Restrictive Covenant

Seeking expert legal advice is advisable to determine the most appropriate remedies to pursue based on the specific situation. Injunctions and damages are common.

Here are some key remedies available for breach of a restrictive covenant:

  • Injunction – The benefitting landowner can seek a court injunction to stop or prevent the breach of the covenant. This is a common remedy to prevent anticipated or ongoing breaches.
  • Damages – Monetary compensation can be claimed for financial losses caused by the breach of covenant. This covers loss of property value or lost opportunities.
  • Specific performance – The court can order the breaching party to comply with the covenant by undoing or reversing any breach.
  • Rectification – The court may direct steps to be taken to remedy the breach, such as removing a structure that violates a covenant.
  • Declaration – A court declaration can clarify the meaning of a covenant or confirm that a breach has occurred. This may accompany other remedies.
  • Account of profits – Monetary compensation for profits made by the breaching party from the breach.
  • Removal of goods/structures – An order to remove items that breach a covenant, such as an extension or fence.

 

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