Negative covenants and real-estate developers' modus operandi: the case of suburban densification in Oslo, Norway

摘要

This article presents an investigation of how developers in Oslo, Norway, relate to and deal with negative covenants in densification projects. A densification project which is permissible under the zoning system and public-law provisions might simultaneously be in breach of the covenant system and private-law rules. As long as a negative covenant is not annulled in the event of a conflict between the covenant and project plan, it can prevent publicly approved development projects from going ahead. The challenges associated with negative covenants and zoning plans, and thus the implementation of housing and densification policies, have been the subject of several Supreme Court decisions, concluding that the implementation of a zoning plan does not overrule negative covenants inconsistent with the public regulations. The article’s most important finding is that the Norwegian system for dealing with covenants is costly in terms of time and resources, and creates unpredictability for rights holders and developers alike due to the risk of covenants being enforced. The biggest challenge is having two different systems working more or less independently of one another.