What are restrictive covenants (villaklausuler)?

Restrictive covenants (villaklausuler) are often old, and since they do not necessarily appear in the ordinary land register (grunnboken), it is important to also check the historical land register.

A restrictive covenant is a registered encumbrance that typically prohibits building anything other than detached, villa-style housing or similar (a negative easement). Such covenants used to be very common. Although restrictive covenants are not drawn up as often any more, they do still sometimes affect older properties.

Restrictive covenants often contain provisions on building height, bans on unsightly or noisy activities and the like. Problems often arise when developers want to build blocks of flats or commercial premises. It is then typically the neighbouring properties that invoke the covenants and argue that the project cannot go ahead because it conflicts with the restrictive covenant. Restrictive covenants can be attached to a single property, but in principle they most often apply to entire neighbourhoods (area-wide covenants, strøksservitutter).

Such covenants are often very old and therefore do not necessarily appear in the ordinary land register. It is therefore important for the developer to check the historical land register. However, it can be difficult to clarify restrictive covenants in old land registers because of later subdivisions.

Current case law holds that, as a general rule, restrictive covenants retain their legal effect, even if they are old. This means that, as a starting point, a developer cannot build in breach of a restrictive covenant. This applies even if a zoning plan (reguleringsplan) has been adopted that allows the desired development. Building in breach of a restrictive covenant can result in full liability for damages.

Whether a new building project would breach a restrictive covenant will depend on a specific interpretation of the covenant in question and other relevant circumstances.

An application can be made to remove restrictive covenants under the Servitudes Act (servituttloven), or they can be expropriated under the Planning and Building Act (plan- og bygningsloven). However, this can take time and be costly.