Restrictive Covenant that expired in 1975 -help me!

Sensible_Jess

Hi
I am currently selling a house that I bought in 2000. It has a garage attached to the house which has been extended to the rear to provide a store room (not living accomodation) Many other houses (at least 7) in the same street (of fourteen houses) have had the same extension.
I did not carry out the extension myself, and I don't know when it was completed. I do know that when I purchased the house my survey said that the flat roof which covered both the garage and extension needed replacing as it was near the end of it's life. No queries about this extension were raised by my solicitors at the time.

However, my buyer's solicitors have pointed out a restrictive covenant in my deeds which state that the house cannot be extended in the five year period from the build date without permission from the Vendor or their sucessors and paying a fee of £3 3 shillings. This covenant expired in 1975 as the house was built in 1970.

I have no documents which give the date of the extension and a search of the local planning department has turned up nothing. I can't prove when it was carried out, but can anyone else? How can I resolve this?

Thanks

Jess

princeofpounds

Buy an indemnity policy if you need to - there are insurers who deal with these sorts of things. It won't be that expensive.

Plus, this will only be a problem if the beneficiary of the covenant (the original vendor) took issue with it, and given they have been off the scene for decades and the clause has expired and it has probably passed through all sorts of statutes of limitation.

Your solicitors really should be able to advise you about these issues. Try posting on landlordzone forums as there are legal experts there.

Sensible_Jess

Thanks - will do.
My solicitors are about a useful as a chocolate teapot - they've only told me that the buyer will not sign the contract because of this issue and not how I could resolve it...Also i'm not sure why it never came up when I bought the house - have a feeling that I knew the date of the extension but I have no documents from then to prove it.
Will not be using them again!

clutton_2

can't you suddenly "remembetr" that the extension was built in 19

""However, my buyer's solicitors have pointed out a restrictive covenant in my deeds which state that the house cannot be extended in the five year period from the build date without permission from the Vendor or their sucessors and paying a fee of £3 3 shillings. This covenant expired in 1975 as the house was built in 1970.""

if the covenant has expired - what is the problem ?? especially if you just "recall" that the extension was actually built in 1977......

Debt_Free_Chick

I don't think it matters when the extension was built, provided it was more than 6 years ago. Any action is now "time barred". I believe the time limit is 6 years, but it could be 12 (which it is under trust law). Either way, it's out of time.

Anyone confirm?

Richard_Webster

Breaches of restrictive covenants are actionable following a case called Hepworth v Pickles for 20 yaers form the date of the breach.

However in this case there are two separate points.

If the extension was built after 1975 then there is no breach if consent is only required for work done before then. If built before it is immune under Hepworth v Pickles anyway, so you solicitors should be telling the buyer's solicitors not to be so stupid.

If it was a company whose consent was required it may be that that company no longer exists - you can check that at:
http://wck2.companieshouse.gov.uk/c279a314fb3235a4cb572cf862ececab/wcframe?name=accessCompanyInfo.

If the consent cannot be obtained because the company no longer exists then again the covenant is not enforceable.

Sensible_Jess

Thanks for the posts.

I don't thing that a lie helps right now - even if I 'recall' the date of the extension, I have no documentary evidence to back this up.
The covenant is from Greene King - last time I looked they were still going strong...
It's just one thing after another and as the covemnant was only for 5 years and expired 34 years ago, I think it is petty and bullying tactics. my solicitor (also acting for the vendor) is worse than useless - won't be using them again if the sale fall through!

DVardysShadow

Sensible_Jess wrote: »

Thanks for the posts.

I don't thing that a lie helps right now - even if I 'recall' the date of the extension, I have no documentary evidence to back this up.

Agree

The covenant is from Greene King - last time I looked they were still going strong...
It's just one thing after another and as the covemnant was only for 5 years and expired 34 years ago, I think it is petty and bullying tactics. my solicitor (also acting for the vendor) is worse than useless - won't be using them again if the sale fall through!

There is a clear conflict of interest here. This situation is exactly why solicitors should not act for both parties. I suggest that you look at which party first engaged the solicitor and who agreed that the other party could use the same solicitor. One of you has to change solicitor.

Richard_Webster

The answer has been given not only here but also on Landlordzone where Lawcruncher gave exactly the same answer as me.

If the work was done pre 1975 it is immune under Hepworth v Pickles, if after it does not need consent. End of problem.