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    • Luke Holloway
    • By Luke Holloway 29th Nov 17, 1:55 PM
    • 2Posts
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    Luke Holloway
    Council Covenants
    • #1
    • 29th Nov 17, 1:55 PM
    Council Covenants 29th Nov 17 at 1:55 PM
    Hi all,


    I am currently in the process of selling a small area of my front garden (about 5m2) for access to a development. The area will essentially be used for a pavement.


    We've come to an agreement on price/ accommodation works, but going through my deeds the developer has noted that I have a couple of covenants that would need to be removed for the development to go ahead. These are as follows;


    1. Not to carry on upon the property or any part thereof any trade of business or to use the same otherwise than as a private dwellinghouse


    2. Not to erect any building on the property other than a domestic garage garden shed greenhouse or similar structure


    Currently the developers purchaser (housing association) has said they would take this forwards with the council. I am somewhat concerned what the cost may be of removing this covenant - its not a typical 'I want to build on it so this should be the value' situation.


    Ultimately, I don't think a pavement goes against item 1. whose spirit is in relation to business activities and 2. A footway is not erecting a property. Unfortunately, it seems the solicitors are thinking otherwise. I'm a QS and worked on a project where we couldn't 'build' or erect a 'structure' over a wayleave area (this became a legal issue/ stop notices etc) however we were able to build a car park. Given the same thinking I don't think the proposed use contravenes it?


    Would be interest to hear peoples thoughts - if they turn around and ask for a significant sum I may take up legal advice on it (my current solicitor is paid by the developer and is useless).


    Cheers.
Page 1
    • ProDave
    • By ProDave 29th Nov 17, 4:50 PM
    • 459 Posts
    • 535 Thanks
    ProDave
    • #2
    • 29th Nov 17, 4:50 PM
    • #2
    • 29th Nov 17, 4:50 PM
    It sounds like in effect you have a ransom strip. I hope you are charging them a good price for it.

    :Let their lawyers sort out the covenant issue at THEIR expense. Stand form and say the amount you have agreed on is what you want and they must at their expense sort out any issues to their satisfaction.
    • societys child
    • By societys child 29th Nov 17, 5:06 PM
    • 4,895 Posts
    • 5,348 Thanks
    societys child
    • #3
    • 29th Nov 17, 5:06 PM
    • #3
    • 29th Nov 17, 5:06 PM
    I was thinking the same^ along with, do they have a plan B, or does the whole plan fall apart without your land?

    Depending on the value, perhaps you need your own solicitor?
    Last edited by societys child; 29-11-2017 at 5:15 PM.

    • Luke Holloway
    • By Luke Holloway 29th Nov 17, 5:08 PM
    • 2 Posts
    • 0 Thanks
    Luke Holloway
    • #4
    • 29th Nov 17, 5:08 PM
    • #4
    • 29th Nov 17, 5:08 PM
    Hi Prodave,


    Yes, works out to over £100M an acre lol! (plus significant accommodation works and 25% overage on a future development area).


    Ok cheers for the advice, wasn't sure who bears the cost normally for this. If it ends up me paying 20% of the fee I don't mind but don't think I should really bear the full cost. Its a little more awkward as there is another route for them (over common land), but I know they are asking for more cash than me plus its awkward.
    • stator
    • By stator 29th Nov 17, 5:12 PM
    • 5,908 Posts
    • 3,891 Thanks
    stator
    • #5
    • 29th Nov 17, 5:12 PM
    • #5
    • 29th Nov 17, 5:12 PM
    If this is a large development and already has plannig permission the council will want to move it forward too, I think they still get bonus payments for new houses built in their area.
    Changing the world, one sarcastic comment at a time.
    • societys child
    • By societys child 29th Nov 17, 5:18 PM
    • 4,895 Posts
    • 5,348 Thanks
    societys child
    • #6
    • 29th Nov 17, 5:18 PM
    • #6
    • 29th Nov 17, 5:18 PM
    there is another route for them (over common land), but I know they are asking for more cash than me plus its awkward
    Ah, plan B.

    • EachPenny
    • By EachPenny 29th Nov 17, 5:42 PM
    • 3,377 Posts
    • 6,289 Thanks
    EachPenny
    • #7
    • 29th Nov 17, 5:42 PM
    • #7
    • 29th Nov 17, 5:42 PM
    Currently the developers purchaser (housing association) has said they would take this forwards with the council. I am somewhat concerned what the cost may be of removing this covenant - its not a typical 'I want to build on it so this should be the value' situation.
    ...
    Would be interest to hear peoples thoughts - if they turn around and ask for a significant sum I may take up legal advice on it (my current solicitor is paid by the developer and is useless).
    Originally posted by Luke Holloway
    Really this isn't your problem. As far as I understand your only responsibility would be to ensure the covenants still applied to the land you are selling at the point you sell it. What the developer/Housing Association do subsequently is up to them, though obviously they might be less keen to buy if the covenants cannot be lifted.

    On the face of it, using the land for a footway is contrary to the covenants. But this is unlikely to be a problem for the developer unless the council is opposed to the new homes being built (which seems improbable). The developer and/or HA would just need to reach agreement with the Council - which logically would make sense to do after you've sold the piece of land, otherwise it becomes more complicated because the removal would affect only part of the whole property you own.

    Ok cheers for the advice, wasn't sure who bears the cost normally for this. If it ends up me paying 20% of the fee I don't mind but don't think I should really bear the full cost. Its a little more awkward as there is another route for them (over common land), but I know they are asking for more cash than me plus its awkward.
    Originally posted by Luke Holloway
    Doing anything with common land is a PITA and the council, developer and HA would want to avoid this if possible.

    Personally I would tell them any costs associated with removing the covenant will need to be paid by them. The only thing you need to be absolutely clear in the agreement is you are selling the land with the covenants in place, that the purchaser acknowledges this, and they will take responsibility for dealing with the issue appropriately (and legally!).

    Bear in mind councils have compulsory purchase powers and in theory those powers could be used to purchase the land required to construct a safe means of access to the development. The council would only do that as a last resort, but just something to bear in mind as part of the negotiation. You are likely to be able to get a far better deal by negotiation compared to the compensation available via a CPO.
    "In the future, everyone will be rich for 15 minutes"
    • G_M
    • By G_M 29th Nov 17, 6:36 PM
    • 42,346 Posts
    • 49,192 Thanks
    G_M
    • #8
    • 29th Nov 17, 6:36 PM
    • #8
    • 29th Nov 17, 6:36 PM
    They want the land so they agree (in writing) to cover all your costs - leagal or oherwise. As well as whatever sale price you've agreed.

    Without that, don't sell.
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