June 15, 2018
Breach of covenant in property law – Legal advice: How do I take action?
Covenants are binding agreements or promises to do or not do something. Residential and commercial leases contain many covenants. Freehold property titles of both residential houses and commercial premises may also contain covenants.
What constitutes a breach of covenant?
A landlord might claim a breach of covenant if a tenant alters a flat or shop without permission, or sublets part, or uses it for something which is not allowed, or does not keep it in good repair. The landlord might claim an injunction that the tenant does what he agreed, or stops doing what the agreement forbids him to do. There might be a claim for damages as well. Or the landlord might claim that the breach is so serious that the tenant should lose the lease. A wise tenant, if he does not admit the breach and agree to put it right, should get legal advice quickly.
The most common arguments with freehold property are about breach of “restrictive” covenants. These restrict the use of land, e.g. residential only, or only 2 houses may be built, or an area of land cannot be built on. Who has the right to enforce the covenant is often complicated, something on which specialist legal advice is needed. A special court, the Lands Chamber of the Upper Tribunal, has the power to relax or release restrictive covenants which have been agreed.
Breach of covenant remedies.
If letters don’t solve the problem a claim will start with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide.
The usual remedies are a declaration declaring the legal rights, an injunction to permanently forbid the breach and/or and damages. The court sometimes, even though there is a breach, does not make an injunction to put it right but instead awards damages.
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By Paul Ashwell | Property
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