In a major panic over covenant/stipulation - please help!

JazzyJ

We have agreed to sell off part of our land which contains a building. This building has never had residential permission, but has had retail use and storage use.

I received a letter from our solicitor yesterday requesting all the info regarding planning (we now have change of use planning on the outbuilding) etc, and in the letter he mentioned what his fee would be providing there are no covenants in the deeds preventing us from selling part of your property.

I was looking for a copy of the original plan, so that I could mark off the land which is being sold with the building, and read the following in the contract:

Third Schedule (Stipulations to be observed by the Transferee)

1. Not to use the property other than as a single private residence

The other stipulations are regarding caravans, satellite dishes etc. I am now majorly panicking, and have been awake most of the night worrying that this will be a big problem.

We bought the house from a new homes builder who was bought out by Westbury Homes in 2003 and then they were bought out (two years ago, I think) by Persimmon.

Is this a problem, can the builder (who is now no longer) or their successors enforce this, or can we take out an indemnity policy to cover this.

As the outbuilding was transferred to us without residential planning, does this make a mockery of the stipulation?

I know I can call our solicitor in the morning, but I can see all this crashing around our ears, and would really appreciate some input.

JazzyJ

Sorry to bump my own post but I am guessing no-one can offer any advice. Will call the solictor first thing in the morning, and hope it is not all doom and gloom.

Incisor

If you have planning permission, then I doubt there will be a problem. I think your solicitor will advise indemnity insurance Don't go digging into this, leave it to your solicitor, because indemnity insurance only protects you against the unknown.

Premier_2

The covenants are there in the interests of all.

So for example, if you are not allowed to keep a caravan on the front drive, a neighbour (who would be aware of the same restrictive covenant as it would also apply to them) could get an order for it to be removed.

The fact that the original seller, who may no longer be in existence, imposed the covenant is not really relevant.

JazzyJ

Thanks for your replies.

From my reading online last night (which I know is a dangerous thing), planning is completely separate from any restrictions or covenants. When planning is agreed, they do not check the deeds to ascertain if the house owner is actually allowed to do what they are planning to do.

I also read last night that if the person or company that initiated the covenant is no longer in existence, then the covenant is void.

Furthermore though, I read that some homeowners go to the Lands Tribunal to get covenants removed, and that takes months.

bubblesmoney

bumping the post as well. as am interested in this issue of what happens to covenants put in by builders who dont trade any more or have been bought out by other bigger builders who are no longer in the development as was completed many years ago.

Premier_2

I also read last night that if the person or company that initiated the covenant is no longer in existence, then the covenant is void...

Where did you read this please, as it's not my understanding.

Even if it were the case, despite Westbury Homes no longer being in existence, Persimmon Homes are and depending on the terms of their purchase of Westbury Homes, may have some associated rights.

Incisor

JazzyJ wrote: »

... From my reading online last night (which I know is a dangerous thing), planning is completely separate from any restrictions or covenants. When planning is agreed, they do not check the deeds to ascertain if the house owner is actually allowed to do what they are planning to do.

I also read last night that if the person or company that initiated the covenant is no longer in existence, then the covenant is void.

Furthermore though, I read that some homeowners go to the Lands Tribunal to get covenants removed, and that takes months.

Quite safe to read about principles. I think it is also the case that anyone aggrieved by breach of covenant has to get the original other party to it to take action.

Incisor

Premier wrote: »

So for example, if you are not allowed to keep a caravan on the front drive, a neighbour (who would be aware of the same restrictive covenant as it would also apply to them) could get an order for it to be removed.

In this case, it has gone through planning, so objectors have already had an opportunity.

Premier_2

As a follow up to my earlier post, this is what desktoplawyer.co.uk has to say

...A restrictive covenant can be enforced by the courts if a beneficiary of the covenant objects. The agreement is enforced by granting an injunction forbidding the landowner to break the agreement....

http://www.desktoplawyer.co.uk/dt/browse/law/index.cfm?fs=lga&sid=75919&aid=35100

Agreed, it may not be a definitive view on the law, but probably has more credence than a post on a public forum.

The neighbours are beneficiaries of the covenant as it restricts the purpose to which the land may be used (and so could claim makes their own property more appealing).


Also

...If you breach a covenant, then the person with the benefit of the covenant can enforce it against you. This could mean ripping down an extension that you’ve had built without consent!...

But

If there has been a continuous breach for over 20 years, then the breach can be viewed as “statute barred” and therefore unenforceable. This meand that the third party has allowed the breach to continue for all that time and they are therefore prevented from taking action in relation to it.

http://www.conveyancingexplained.co.uk/?p=83

Again, no definitive view on the law (I have to say this else the usual posse will probably jump on it :rolleyes: ), but something to get you started

JazzyJ

Premier wrote: »

Where did you read this please, as it's not my understanding.

Even if it were the case, despite Westbury Homes no longer being in existence, Persimmon Homes are and depending on the terms of their purchase of Westbury Homes, may have some associated rights.

I read so much stuff last night that I am not sure. I have looked through my history, but the only thing I can find is this, but this says the developer/company must have gone bust:

http://www.diyconveyance.co.uk/restrictive-covenants.html