Restrictive covenant - problem?

sackofspuds

We're about to exchange on a house but I (not my solicitor) found a restrictive covenant in the Land Reg title dated 1897:

The purchaser shall ... erect on the side of the property facing the road a nine inch brick wall two feet high with stone coping and on the same an ornamental iron railing with iron entrance gate.

The house is Edwardian (built in the 1930s so some time after the covenant). It has no such fence or gate - the fence is wooden and there is no gate.

Our solicitor is asking for an indemnity but says this is unlikely to be offered by the seller (trying to find out why she thinks this unlikely). The seller states that there was no wall, iron railing or gate when they purchased.

Presumably if we bought without an indemnity we run the risk of:

1. Someone (who might that be?) attempting to enforce the covenant.
2. Being asked by a future purchaser for an indemnity when we come to sell.

We are minded to stand our ground and insist on an indemnity.

Are we being overly cautious? Are such old covenants being breached as a matter of course?

Fang_3

I don't know about you, but I'd rather have a nice sturdy wall and railings than a wooden fence in front of my house.

Hailstorm

sackofspuds wrote: »

We're about to exchange on a house but I (not my solicitor) found a restrictive covenant in the Land Reg title dated 1897:

The purchaser shall ... erect on the side of the property facing the road a nine inch brick wall two feet high with stone coping and on the same an ornamental iron railing with iron entrance gate.

The house is Edwardian (built in the 1930s so some time after the covenant). It has no such fence or gate - the fence is wooden and there is no gate.

Our solicitor is asking for an indemnity but says this is unlikely to be offered by the seller (trying to find out why she thinks this unlikely). The seller states that there was no wall, iron railing or gate when they purchased.

Presumably if we bought without an indemnity we run the risk of:

1. Someone (who might that be?) attempting to enforce the covenant.
2. Being asked by a future purchaser for an indemnity when we come to sell.

We are minded to stand our ground and insist on an indemnity.

Are we being overly cautious? Are such old covenants being breached as a matter of course?

Those two risks sum it up quite well.

The chances of it being enforced are probably very low and if the company or organisation who placed the covenant no longer exists (very likely since it dates back to 1897) then it would not be enforcable anyway.

The other thing to consider is that if you are buying with a mortgage then many lenders now require indemnity policies for breaches or covenant. Even if you are cash buyers or your lender does not require it there is a fair chance future purchasers would.

delmar39

I don't think you're being over cautious. Better to sort these things out now, rather than further down the line. I guess your solicitor will advise.

Richard_Webster

If the covenant is simply to erect the wall etc and there is nothing requiring it to be maintained it could be argued that it is a positive covenant (and not a restrictive covenant) that can only be enforced by the original covenant holder against the original person who entered into the covenant and is therefore unenforceable.

princeofpounds

It's not just any old person that can enforce a covenant. Only the beneficiaries of the covenant can do so. It's hard to know without the details but if the beneficiaries died or became defunct a long time ago, or are no longer likely to care, you probably shouldn't worry too much, especially given the requirements are just for a low wall and fence.

But that does make it a bit odd that the vendor won't give you an indemnity policy - would have thought it would be cheap for such a thing.

Suzy_M

What about other similar properties in the area? Any railings left anywhere?

Bearing in mind a lot of railings on private properties were removed for recycling during World War II and were never replaced I would imagine this covenant is very unlikely to be enforced.

You could also look at it from a different angle - putting a wall and railings in as described in the covenant would be a restoration feature. - Plus longer lasting and minimal maintenance.

Cannon_Fodder

The railings were probably ripped out in WW2, to help build tanks etc...

If no requirement to keep the wall & railings maintained/intact, then the covenant was met originally and has now ceased to have effect, I would think. Problem might be getting a Lender to understand that.

Ask a neighbour if they have the same paperwork ? Compare neighbouring front walls...

Any old photos of the street to gauge when the change occured? Anything on the planning database "retrospective removal of walls" type of thing ?

timmyt

sackofspuds wrote: »

We're about to exchange on a house but I (not my solicitor) found a restrictive covenant in the Land Reg title dated 1897:

The purchaser shall ... erect on the side of the property facing the road a nine inch brick wall two feet high with stone coping and on the same an ornamental iron railing with iron entrance gate.

The house is Edwardian (built in the 1930s so some time after the covenant). It has no such fence or gate - the fence is wooden and there is no gate.

Our solicitor is asking for an indemnity but says this is unlikely to be offered by the seller (trying to find out why she thinks this unlikely). The seller states that there was no wall, iron railing or gate when they purchased.

Presumably if we bought without an indemnity we run the risk of:

1. Someone (who might that be?) attempting to enforce the covenant.
2. Being asked by a future purchaser for an indemnity when we come to sell.

We are minded to stand our ground and insist on an indemnity.

Are we being overly cautious? Are such old covenants being breached as a matter of course?

no one will make you erect a wall, move on and buy the house. dead issue that you and lawyer are wasting time over.

G_M

If I were the vendor, I too would refuse to pay for an indemnity policy.

If the covenant said "... erect and maintain on the side...." it might be different, though previous posters referring to the issue of who might enforce the covenant also have valid poiunts.

As said above - dead issue.

sackofspuds

Thanks for all the replies. The covenant begins:

The purchaser shall forthwith make and hereafter maintain

but then goes on to talk about a boundary fence.

It goes on to say:

he shall also erect ... a nine inch brick wall ... and ... an ornamental iron railing with iron entrance gate.

Reading carefully, there's no requirement to maintain the iron railings and gate, hence it's a contract between the original seller and purchaser which can't be enforced now.

In any event, the seller has offered an indemnity.