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.

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