Homeowners planning to build on neighbouring land could be hit by restrictive covenants even if they have bought the land and have planning permission, property lawyers at Lodders Solicitors in Cirencester (Stratford-upon-Avon) are warning.

Lodders’ property lawyer Penny Samworth said: “A recent ruling means that a covenant against nuisance and annoyance can apply to building works.

“In practical terms this means that people should be aware of this when buying property which is already affected by a covenant not to cause a nuisance or annoyance to the owner of neighbouring property, because it may prevent them from adding an extension.

“Lots of properties are affected by covenants of this nature, particularly when they form part of a development. It would also be of interest to anyone buying land from a neighbour, if the neighbour wants to impose a covenant of this nature.

“The way to deal with it is for the buyer’s solicitor to qualify the covenant so that it would not prevent the buyer from building on the land.”

In a court case Davies v Dennis and others, the Court of Appeal upheld the High Court's decision that building a house extension was, in the circumstances, in breach of a restrictive covenant against nuisance and annoyance.

The Court of Appeal held that the covenant not to annoy or cause nuisance did apply to the proposed building works.

The new extension was capable of being a nuisance, while being built, and once built.

It also ruled that the covenant was not nullified by any permission given to carry out the works, further to a separate covenant not to build without the consent of the management company.

The judgment adds weight to the earlier decision that a covenant against nuisance and annoyance can apply to buildings. Such covenants cannot be dismissed when considering the feasibility of developing property.

Penny Samworth said: “The case also illustrates the common pitfall of failing to check whether the proposed development is permitted from a land title perspective despite the fact that planning permission has been obtained.

“Home buyers often suffer from rose tinted glasses in the euphoria of buying their next property and it is very important that your solicitor checks out all aspects of the purchase, not just that the bricks and mortar exist and are in good order.”