Legal update


Extending your care home: restrictive covenants


Tom Lumsden, a partner at CooperBurnett LLP, discusses where providers and developers stand when building or extending care homes on land affected by restrictive covenants


Many care home operators will decide at some point to extend an existing care home. Aside from the need to obtain consents such as Planning Permission, Listed Building Consent, Building Control Regulations Approval, easements/wayleaves from the statutory undertakers (such as electricity, gas, and drainage companies for enhanced services), the issue of restrictive covenants is often overlooked. A restrictive covenant is a legally binding promise, registered in the title deeds of a property, which requires the care home owner not to do the things specified. A restrictive covenant differs from a positive covenant (where the relevant party is required to take action or do something). Examples of restrictive covenants include: not to build on land; not to use the property for a specified purpose; not to erect an extension or carry out alterations to buildings, or not to do so without the prior written consent of the adjoining landowner. There is in theory no limit to the scope and variety of restrictive covenants. The burden of a restrictive covenant (this means the obligation to comply with the restrictive covenant) can often be enforced against successors in title to the care home. It is essential to check the title deeds of the land on which the extension will be built as early as possible. If restrictive covenants are discovered only after the architects, planning consultants, and structural engineers have carried out their work, then significant professional fees can be wasted, and delays incurred. In the case of care homes where the title is registered at the Land Registry, it is normally very easy for


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a solicitor to check whether the proposed extension would result in a breach of a restrictive covenant and give appropriate advice. The existence of restrictive covenants is quite often discovered incidentally at the planning application stage. This is because adjoining landowners will take legal advice and raise a planning objection which mentions a restrictive covenant that would be breached if the extension goes ahead.


Discharging a restrictive covenant There are potentially two main ways in which to discharge (i.e. cancel) or modify a restrictive covenant.


First, there is a ‘non-statutory’ route


which involves the adjoining landowner entering into a deed releasing the land from the restrictive covenant. There are disadvantages with this option – the adjoining landowner will be aware of the planning application to build the extension,


It is essential to check the title deeds of the land as early as possible


and may see this as an opportunity to extract a large capital payment from the care home owner in return for agreeing to a Deed of Release. Some adjoining landowners may refuse point blank to sign a deed of release, no matter how much money is offered.


A further problem is that, especially with old restrictive covenants, it is not always possible to identify exactly which adjoining landowner has the benefit of the covenant (the right to enforce). If the adjoining land has been subdivided with plot sales, there may be very many parties entitled to enforce the covenant. It can be difficult and sometimes impossible to identify all of those landowners. In this case, the care home owner would need to ensure that each and every single adjoining landowner entitled to enforce the restrictive covenant signs a Deed of Release. For practical reasons, this can be difficult. The second way to modify the restrictive


covenant is to make an application to the Upper Tribunal (Lands Chamber) which is a type of property court. The Tribunal has the power to discharge or modify a covenant, but again there is no guarantee that it will do so. Typical grounds on which such an


www.thecarehomeenvironment.com June 2024


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