We've had an offer accepted on a house. It is owned by the diocese, so we're buying it from the church.

I bought a copy of the title register from the Land Registry website and in it, it mentions a 'restrictive covenant,' dated December 1926.

The house wasn't even built until the 1990s, before being sold to the church in 2002. 

The title register goes on to say the original deed 'was not produced on first registration.'

What does this mean? How do we find out what this covenant is, and should we be worried?

Ed Magnus of This is Money replies: The presence of the restrictive covenant is certainly cause for concern, and buying the £7 title deed was a sensible first step.

Purchasing a home is one of life's biggest financial commitments and you don't want to end up with something that either places limits on what you can do with the property, or makes it harder to sell in the future.

Restrictive covenants are legally binding clauses written into the title deeds and dictate what an owner can or can't do with a property or the land itself.

They can prevent the owner from making alterations or building an extension, for example, or from running a business from the home.

The fact the covenant was created nearly a century ago would lead many to assume that it is no longer something they need to worry about. After all, it's almost certain the person who put it in place is no longer with us. 

However, the age of a covenant won't necessarily impact its validity. This is because covenants essentially 'run with the land' and apply to all future buyers, unless they are removed.

The title register you shared with me shows that a legal transfer dated 21 December 1926 was made between buyer and seller and 'contains the restrictive covenants but neither the original deed nor a certified copy was produced on first registration.'

For expert advice, we spoke to Olivia Egdell-Page, partner and head of the property department at Joseph A Jones & Co LLP and Mike Hansom, a partner and consultant for property litigation at BLB Solicitors.

What is this restrictive covenant?

Olivia Egdell-Page replies: Restrictive covenants are obligations not to do or undertake certain activities upon the land that you own. 

Depending on the nature of the covenant, the impact on a homeowner will vary. 

Sometimes they can be fairly generic restrictions, for example not to keep chickens or cause nuisance or annoyance to the neighbours. 

We often see covenants preventing the use of a property for the sale of alcohol, or as a 'dancing hall' which in an established residential area would presumably not be the buyer's intention. 

However, there can be instances where there are more far-reaching restrictions. 

These may include a restriction on running a business from the property or building on the land, which continue to be relevant in the modern day.

How likely is it to be enforced?

Olivia Egdell-Page replies: The enforcement of a covenant is not always possible. To force a homeowner to abide by a covenant, the benefiting party - often a neighbouring landowner - must demonstrate a sufficient connection to land in the area which is impacted by the breach. 

If the person or entity has long disposed of their land, the likelihood of enforcement is greatly reduced.

For that reason, arguably the older the covenant, the less likely that the person with the benefit of this will be able to enforce it, or demonstrate sufficient connection to the benefitting land to do so. 

On that basis, I'd say that it is unlikely that a covenant from 1926 would be enforced in practice, however they are still relevant when you are purchasing a property, and I'd always advise my clients as to the nature of the covenants affecting the property they are purchasing, regardless of the date these were imposed. 

If covenants are expressed to benefit subsequent owners, and a chain of ownership can be demonstrated, they may still be enforced, so the time that has passed does not automatically invalidate them.

Mike Hansom adds: It is unusual for a Land Registry title to refer to a historic deed while giving so little information about its contents. 

The fact that the 1926 deed is mentioned means the restrictive covenant it contains is likely to be binding, even though the original document was not produced when the property was first registered. I appreciate why this uncertainty is unsettling.

A restrictive covenant is a binding promise not to do something on the land. It 'burdens' one piece of land - here, the property you intend to buy - and 'benefits' another, usually nearby land owned at the time the covenant was created. 

Because restrictive covenants run with the land, whoever currently owns the benefiting land could, in principle, enforce the restriction.

Typical covenants from this era include prohibitions on commercial use, further development, sub-division of the plot, or construction of additional dwellings. 

It is also possible, though not common, that the existing house was built in breach of covenant. Without the deed, you cannot know for certain what is prohibited, so there is a risk of enforcement at any time.

That risk may be lower than it appears. The covenant is almost a century old, and it has been noted on the register since 1993. That is a long period for any benefiting landowner to have raised concerns, especially if the property has been used and occupied without issue. Many such covenants have, in practice, fallen into disuse.

What should they do to protect themselves? 

Mike Hansom replies: The usual approach to handling this situation is through indemnity insurance. 

This is a one-off policy taken out by either the buyer or the seller that protects you if someone attempts to enforce the covenant. 

Your conveyancer will advise on the scope of cover, but policies typically cover any resulting decrease in the property's value. 

They might also include the legal costs of defending a claim, including applying to the Upper Tribunal (Lands Chamber) – which functions like a court – to modify or discharge the covenant because it is outdated or impedes reasonable use. 

Usually, there are conditions attached to such insurance, such as an obligation not to take any action that could alert your neighbours to the existence of the covenant or the insurance policy.

Insurance does not remove the covenant, but it does mitigate the financial risk. 

The practical alternative - requiring the seller to locate or reconstitute the missing deed - may not be feasible and could jeopardise your purchase.

Olivia Egdell-Page adds: To protect yourself where the documents are lost and there is no scope for these to be located, often solicitors will request indemnity insurance policies for the unknown covenants affecting the title. 

Generally, such policies provide cover for any loss in value due to enforcement action being taken by those with the benefit of the same. 

In this instance, this would be my suggestion, provided that both the buyer and their lender are aware of the implications and are content to proceed on this basis.