Solar panels and restrictive covenants

Why this is separate from planning

Three regimes sit on top of each other and they are frequently confused. Setting them side by side is the fastest way to see the point.

A property can be free of any planning constraint and still be bound by a covenant that prohibits the installation. The covenant wins, because it is a different kind of obligation entirely.

What the wording looks like

Very few covenants mention solar — most predate it. What catches an array is general wording. Typical forms:

• not to make any alteration to the external appearance of the property without the written consent of the vendor or their successors
• not to erect any structure, aerial or external fixture on the property
• not to alter the roof covering or the elevations
• to maintain the property in accordance with an estate scheme or design code
• not to use the property otherwise than as a private dwellinghouse, sometimes read as catching anything commercial-looking

The third and fourth are common on modern estates and are the ones most likely to be actively enforced, because there is usually still a developer or management company holding the benefit.

Finding out whether you are bound

Start with the title register. Restrictive covenants appear in the charges register of the registered title. Copies are obtainable from HM Land Registry for a small fee.

Then find the document they sit in. The register usually refers to a historic conveyance or transfer rather than reproducing the covenant. You need that document to read the actual wording, and the register will identify it.

Check your purchase file. If you bought the property with a solicitor, they reviewed all of this and reported on it. The report on title may already answer the question.

On a new-build estate, check the transfer. Modern estate transfers routinely contain design and appearance covenants and name a management company as beneficiary. These are the most likely to be enforced in practice, because the beneficiary exists, is organised, and is looking.

Who can enforce it

A covenant is only worth what the ability to enforce it is worth, and that is where many old covenants fail.

For a restrictive covenant to bind a successor and be enforceable, broadly: it must be negative in substance, it must have been made to benefit identifiable land retained by the covenantee, and the benefit must have passed to the person now trying to enforce it.

The practical consequences:

Old covenants with a vanished beneficiary may be unenforceable in practice — the company dissolved, the retained land sold off, the benefit untraceable. This is common with Victorian and pre-war covenants.

Estate covenants with a live management company are the opposite: clearly identifiable beneficiary, current interest, and often an explicit enforcement role.

Neighbours may hold the benefit where the original covenant protected land now in separate ownership. On some estates every plot can enforce against every other.

Do not conclude a covenant is dead because it is old. That is a legal judgement on the title, and getting it wrong means an injunction rather than a saving.

Getting a covenant discharged or modified

Section 84 of the Law of Property Act 1925 gives the Upper Tribunal power to discharge or modify a restriction affecting freehold land. The grounds include:

(a) Obsolete. That “by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete”.

(aa) Impedes reasonable use. Where the restriction impedes some reasonable user of the land, and either does not secure practical benefits of substantial value to those entitled to it, or is contrary to the public interest — and money would be adequate compensation.

(b) Agreement. That those entitled to the benefit “have agreed, either expressly or by implication, by their acts or omissions” to the discharge or modification.

(c) No injury. That the discharge or modification “will not injure the persons entitled to the benefit of the restriction”.

Ground (aa) is the one that fits solar most naturally: an installation is a reasonable use, and there is a public interest argument in domestic renewable generation. It is still a formal tribunal application with costs and delay attached, and for a domestic array the expense is likely to exceed the value of the system.

In practice, the cheaper routes are:

• Ask for consent where the covenant requires it. Often given.
• Negotiate a release with the beneficiary, recorded properly. On an estate this may be routine.
• Redesign so the covenant is not engaged — a rear elevation not visible from the road may fall outside a covenant aimed at street appearance.

If you have already installed in breach

Do not assume nothing will happen. The usual trigger is a sale: the buyer’s conveyancer reviews the title, spots the breach, and requires it to be dealt with before completion.

Indemnity insurance is the common answer, and it is worth understanding what it does. It insures against the financial consequences of enforcement. It does not make the installation compliant, and approaching the beneficiary generally invalidates it — so if you are going down that route, do not write to the management company first.

A retrospective consent or release is better where obtainable, because it fixes the problem rather than insuring against it.

Before you install

Two questions, worth ten minutes:

1. Does my title contain restrictive covenants? Title register, charges register.
2. If so, does the wording catch external alterations or additions? Read the document the register refers to, not just the register.

If the answer to both is yes, that is a conveyancer’s question and it is much cheaper to ask before the scaffolding arrives than after.