Breach of restrictive covenant - help?

humphrey_2

Thanks everyone for your input, very helpful. I will take the indemnity insurance option over contacting the builder option, got to be safer in the long run.

And finally, should I point out at the outset that I've spotted the problem to whichever solicitor I instruct, or do I keep schtum and wait to see if it gets picked up by the purchaser's solicitor? Would rather not have to fork out for the insurance if I don't have to but what's the likelihood it will be missed?

chickmug

humphrey wrote: »

Thanks everyone for your input, very helpful. I will take the indemnity insurance option over contacting the builder option, got to be safer in the long run.

And finally, should I point out at the outset that I've spotted the problem to whichever solicitor I instruct, or do I keep schtum and wait to see if it gets picked up by the purchaser's solicitor? Would rather not have to fork out for the insurance if I don't have to but what's the likelihood it will be missed?

I would also keep quiet as in my experience some solicitors do miss some of these issues. (Richard Webster an exception!)

Also from my builders days we couldn't give a 'you know what' after we were off site. Our only problems came from neighbouring homes expecting us to enforce the restrictions we had set and that could come back and bite us in the bum. We never made a charge unless it was going to cost us but that was beacuse of maintaining good PR with the area.

Richard_Webster

I dont think theres a chance that the builder will say no and to a purchaser that probably looks better than the insurance but I suppose its not a risk many would take.

One local builder I know of used to give free consents by return of post and one day a local solicitor got too pushy with them and virtually demanded the consent be faxed straight away. The builder now charges £300 for retrospective consents, more than the cost of most policies! One local landed estate charges four figure sums for retorspective consents. So contacting the covenant holder can sometimes be expensive...

A more likely problem is that you get no reply at all.. This could be because:

* the builder's address has changed and the letter never got there.
* builder taken over by larger company and post room staff have never heard of the company that got taken over 20 years previously.

In some cases you can phone the builder up and put a hypothetical case and they will tell what to do/where to write to - if the charge is reasonable that may be the way forward - but in a lot of cases it is not practical to find them, so it then safer to go for a policy.

johnson293

The house we recently bought also had restrictive covenants written into the deeds.

Some were historic by the land owners (Duke of Northumberland family) and some by Barratts, who obviously built the houses on the land back in the mid 70's.

The house I bought had a conservatory built/added on to it in 2001 (ish), and my solicitor advised that he woudl take out an indemnity policy to cover that, even though it got planning/building regs, etc at the time.

He said that these sort of covenants were often put in as an extra cover for the area, so if a neighbour wanted to build a huge extension that got planning, but you were unhappy with, you could then go to the people who set the covenants and ask them to look into it - It may still get their approval, but it was soemthing that could protect you as they could say no to it.

However, he also said that strictly speaking, you needed to get permission from these people to erect a garden shed (or suchlike) as well, and used that as an example that almost all the gardens on the street would have a shed, but won't have asked permission, and no-one would come around checking, unless things were brought to their attention.

Richard_Webster

However, he also said that strictly speaking, you needed to get permission from these people to erect a garden shed (or suchlike) as well, and used that as an example that almost all the gardens on the street would have a shed, but won't have asked permission, and no-one would come around checking, unless things were brought to their attention.

Yes, that's often the case. The thing is that with a shed it may be worth taking the risk, i.e. if the covenant holder does come round and moan you remove shed. You might not be quite so keen to remove a kitchen extension though!

chiny

I have a restrictive covenant on my property.

It has already been breached, possibly over 20 years ago by roofing over the space over the previously detached garage The covenant beneficiary appears to be a dormant company, owned by by a retired builder who lives a few miles away.

However, I want to knock down that breach and build a much bigger breach (a proper extension). It seems the realistic way ahead is to take the risk and build without covenant release, then take out insurance in 1 year (as soon as it becomes available) just to keep the solicitor of the next buyer happy.

Maybe the covenant is practically unenforceable as the builder has no nearby land.

chappers

I would wait for your purchasers solicitor to bring this up, you never know your buyer may be willing to split the cost of the policy with you or it may never get noticed.
Chiny you have to be a bit careful here whilst an indemnity policy covers against the costs of the covenant being enforced, it doesn't prevent it being enforced. So whilst it won't cost you anything to have your nice new extension knocked down it may still get knocked down.