Enforcement of Restrictive Covenants and Easements

What is a restrictive covenant?

Restrictive covenants are agreements between parties that one party will restrict the use of its land in some way for the benefit of another’s land. Restrictive covenants are enforceable by the original contracting parties as well as their successors in title.

Restrictive covenants may:

  • Limit possible uses of the land.
  • Prohibit particular trades or businesses.
  • Forbid certain activities particularly if they will cause a nuisance.
  • Restrict type and number of buildings that can be built on a site.

Remedies available for breach of a restrictive covenant

One type of remedy for breach of a restrictive covenant is damages. However, a person with the benefit of a restrictive covenant is more likely to want to stop the breach from occurring by obtaining an injunction from the court. Therefore, in most cases, the party will want an injunction.

What is an Easement?

An easement is a right benefiting a piece of land e.g. the right to use a path or run services over land. This type of easement is sometimes called a positive easement. Remedies are available if an easement is interfered with.

What constitutes interference with an easement will depend on the circumstances. These can be situations such as:

  • Obstructing a right of way;
  • Deprivation of rights to light;
  • A landlords’ rights to redevelop land.

Our team of property litigation solicitors have extensive experience in dealing with preventing the interference of an easement and dealing with the breach of a restrictive covenant. We can provide you with advice on the remedies available to you and discuss your legal position.

Adverse Possession

Adverse possession is where a person who is not the legal owner of a piece of land can become the legal owner by occupying the land for a specified period of time (either 10 years or 12 years depending on the circumstances).

There are two elements to be established in making an adverse possession claim:

  1. Uninterrupted use of the land for the requisite period; and
  2. Intention to possess the land during that period.

Squatting in a Residential Property

This is a criminal offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012). A person will commit a criminal offence if they:

  • Enter a residential building as a trespasser.
  • Knows or ought to know they are a trespasser.
  • Is living in the property or intends to live there for any period of time.

For more information please read our adverse possession guide.

Nuisance and Trespass

Owners of neighbouring properties often get embroiled in disputes as a result of one of them interfering with the other’s land. Examples of these types of dispute are where tree roots encroach onto neighbouring land, where a wall is encroaching onto neighbouring property or there is excessive noise or unpleasant smells coming from one property.

These types of matters in law are described as a nuisance or a trespass.

Nuisance

There a two types of nuisance

  • Public nuisance and;
  • Private nuisance

A public nuisance arises from an act that endangers the life, health, property, morals or comfort of the public. A private nuisance is normally where a person is doing something on their own land that they are entitled to do but it becomes a nuisance when what they are doing extends onto their neighbour’s property and causes an interference with the neighbour’s enjoyment of their property.

Trespass

Trespass is the unlawful occupation of land by somebody other than the owner of that land. Examples of trespass include squatting but can also be where a neighbour builds a wall on land owned by their neighbour or somebody encroaches on your airspace.

If a nuisance or trespass has arisen then it is possible to apply to the Court for an injunction to prevent the nuisance or trespass from continuing and causing future harm. Furthermore, damages are often sought to compensate for any harm that has already been caused.

Myerson’s property litigation department has a wealth of experience in advising on both nuisance and trespass disputes. These areas of the law are technical and expert advice should be sought. We ensure that you are provided with practical solutions to assist you in resolving your dispute smoothly.

Why Choose Myerson?

Our team of lawyers are highly experienced in resolving boundary disputes. In our first discussion, we will discuss your situation and propose various options on how best we can resolve your dispute. 

We will always aim to make sure we explore all options where conflict can be kept to a minimum. However, if necessary we will fight your corner and provide you with the full breadth of our experience and talent. 

Our property litigation solicitors are skilled in all areas of property disputes allowing us to provide you with the full legal service required to get you the outcome you deserve. 

Throughout the process, we will keep you updated on costings and make sure you are kept informed of all major updates to your case. 

Meet Our Specialists

Home-grown or recruited from national, regional or City firms. Our specialists are experts in their fields and respected by their peers.

Seán Hackett

Seán Hackett

Seán is a Partner and Head of our Property Litigation department

Laura Pile

Laura Pile

Laura is a Senior Solicitor in the Property Litigation Team

Emma Dooley

Emma Dooley

Emma is a Solicitor in the Property Litigation Team

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