Posted Wednesday 4th March 2026
In the race to progress a commercial development, private title rights are often overshadowed by planning considerations. Yet easements and restrictive covenants remain one of the most common causes of delay, redesign, and disputes. These private law constraints operate independently of planning permission and, if overlooked, can significantly undermine a project’s viability.
This article highlights the most frequent title-related pitfalls encountered in commercial development and outlines the practical options available to address them.
Restrictive covenants: historic controls with modern consequences
Restrictive covenants are obligations attached to land which limit how it may be used or developed. Common examples include restrictions on building, prohibitions on particular uses, or controls on alterations. While many such covenants are historic, age alone does not make them unenforceable.
For developers, the key risk is that a covenant may prohibit precisely the form of development proposed. For example, commercial use on land subject to a “private residential” restriction. Crucially, the grant of planning permission does not override these private rights. A development may therefore be lawful in planning terms but still vulnerable to enforcement action by those entitled to the benefit of the covenant.
Identifying who has the benefit of these covenants can be straightforward where a single neighbouring landowner is involved, but more complex where the benefit is shared across an estate or multiple property titles.
Easements: rights that can shape (or stifle) a scheme
Easements confer rights over land for specific purposes, such as rights of way, rights to lay or maintain services, or rights of light. While often accepted as part of a proposed site’s legal fabric, easements can materially affect layout, access and build-out potential.
For example, a right of way may prevent the obstruction of a key access route, while service easements can restrict excavation or building over parts of a site. Rights of light claims, in particular, can carry significant financial and design implications where neighbouring buildings are affected.
Why early title due diligence matters
A recurring pitfall is the late discovery of restrictive covenants or easements; often after exchange or once a scheme has been designed. Early and detailed title investigation is therefore critical and should include not only the development site itself but, where appropriate, neighbouring titles to establish who may have enforcement rights.
Early identification allows developers to assess risk, cost and timescale implications, minimising the same before becoming contractually committed to purchase the site.
Practical options for dealing with title constraints
Where beneficiaries can be identified, it may be possible to negotiate a release or variation of a covenant, often in return for a premium. While this can provide certainty, it can also be time-consuming and may alert beneficiaries to the development, increasing their leverage.
Indemnity insurance
Indemnity insurance is frequently used where the risk of enforcement is considered low and no prior contact has been made with beneficiaries. While it does not remove the covenant or easement, it can provide comfort to funders and purchasers by covering enforcement-related losses.
Statutory discharge or modification
Under section 84 of the Law of Property Act 1925, an application can be made to the Upper Tribunal to discharge or modify a restrictive covenant on prescribed grounds, including obsolescence or unreasonable interference with reasonable use. This route can be effective but is often lengthy, fact-sensitive and unsuitable for time-critical projects.
Conclusion
Restrictive covenants and easements remain among the most common, and most underestimated, obstacles in commercial development.
With early identification, informed strategy and appropriate professional advice, these issues can often be managed effectively. Ignoring them, however, can expose projects to delay, dispute and unexpected costs.
For more information, or to arrange a free consultation, please contact Saeed Rafiq, Solicitor, or Charlotte White, Senior Associate in our Real Estate team.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
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