What restrictive covenant means
A restrictive covenant is a promise not to do something on your land.
It is created in a deed, usually when land is sold, and its distinguishing feature is that it can run with the land. The person who bought subject to it is bound, and so is the person who buys from them, and the person after that.
That is what separates it from an ordinary contractual promise. A contract binds the parties. A restrictive covenant properly created attaches to the land itself.
The distinction between restrictive and positive matters. A restrictive covenant is a promise not to do something: not to build above two floors, not to use the property for commercial purposes, not to erect a structure within the setback. A positive covenant requires you to do something and spend money, such as maintaining a shared road, and positive covenants are much harder to make run with the land.
That is why estates use service charge arrangements and estate associations rather than relying on positive covenants alone.
How it is used
In Nigeria you meet restrictive covenants mainly in estate developments.
A developer sells plots subject to covenants designed to keep the estate coherent: residential use only, no commercial activity, building plans to be approved by the developer or the estate association, minimum and maximum building lines, no subdivision of plots, external finishes to match a scheme, no short-lets.
Those covenants appear in the deed of assignment or sublease each buyer signs, and they are what makes an estate an estate rather than a collection of unrelated plots.
For a buyer, the practical exercise is to read them before purchase rather than after. A buyer intending to run a business, build to four floors, or operate short-lets should check whether the covenants permit it, because discovering the restriction after building is expensive.
Enforcement is usually by the developer, the estate association, or a neighbouring owner with the benefit of the covenant. The remedy is an injunction restraining the breach, and where a structure has been built in breach, an order for its removal is available in principle.
Key features
- A promise not to do something on land, created in a deed
- Can run with the land and bind successors in title
- Restrictive covenants run more readily than positive ones
- Common in estate developments to maintain a scheme
- Enforced by the developer, estate association or benefited neighbours
- Remedies include an injunction and, in principle, removal of a structure
How this works in Nigeria
Estate covenants are the practical Nigerian application, and they are enforced more by the association than by the courts.
An estate association controls access, services and the collective machinery of the scheme, and a resident in breach of a covenant faces pressure through those channels long before any litigation. That is worth knowing because it means covenants are effective in practice even where nobody has ever taken a case to court.
The second point is layered title. In many Nigerian estates the developer holds the head title and grants derivative interests to buyers, with the covenants imposed in that grant. A buyer's interest is carved out of the developer's, so the covenants come with it, and the buyer's own title is only as good as the developer's.
The third is short-lets. Many estates have introduced covenants or rules prohibiting them, and an owner who bought before the rule was introduced may still be caught by the association's powers. Anybody planning to run short-lets should check the deed and the estate rules before committing.
For buyers generally, the covenants are part of due diligence rather than boilerplate. Read what the deed restricts, ask the association for its rules, and confirm that the use you intend is actually permitted.
Restrictive covenant vs easement vs estate rules
Three ways land use is controlled by somebody other than the owner.
A restrictive covenant is a promise not to do something, created in a deed, capable of binding successors. It restricts the burdened owner's use.
An easement is a right over somebody else's land: a right of way, a right of drainage, a right to run services. It gives the benefited owner something rather than restricting the burdened one, and it also runs with the land.
Estate rules are made by the estate association under its own constitution and the arrangements residents accept. They are more flexible than covenants, can be amended, and are enforced through the association's own machinery rather than through the land.
A plot in a Nigerian estate is typically subject to all three: covenants in the deed, easements for access and services, and estate rules governing daily life.
Limits and risks
Positive covenants requiring expenditure are difficult to make run with the land, which is why estates use association membership and service charges instead.
Enforcement requires somebody with the benefit of the covenant to act, and where the developer has left and the association is inactive, covenants can go unenforced for years.
Long standing breaches also weaken enforcement, since a court may decline an injunction where the covenant has been widely ignored and the character of the estate has already changed.
And covenants can become obsolete. A restriction that made sense when an area was residential may be unrealistic once it has become commercial, though it remains on the title until modified or released.
Worth knowing
Read the covenants in the deed before you buy, not before you build. Nigerian buyers commit to a plot intending a commercial use or a taller building, and find the restriction in a document they signed at completion and never read.
Questions people ask
What is a restrictive covenant?
A promise not to do something on land, created in a deed. Properly created it runs with the land, binding not only the person who agreed it but subsequent owners as well.
What is the difference between a restrictive and a positive covenant?
A restrictive covenant is a promise not to do something and runs with the land more readily. A positive covenant requires expenditure or action and is much harder to make bind successors, which is why estates use associations and service charges instead.
Who enforces estate covenants?
Usually the developer, the estate association or a neighbouring owner with the benefit of the covenant. In practice the association enforces through access and services long before anybody litigates.
Can an estate stop me running a business from my house?
Where the deed restricts use to residential purposes, yes. Check the covenants and the estate rules before buying if you intend any commercial use, including short-lets.
What remedies are available for breach?
An injunction restraining the breach and, in principle, an order for removal of a structure built in breach. Courts may decline where the covenant has been widely ignored and the estate's character has already changed.
Do covenants expire?
Not automatically. They remain on the title until modified or released, though a covenant that has become obsolete or been widely breached may be harder to enforce in practice.