Covenant requiring permission to extend property

phoebe1989seb

Hi folks,

We have accepted an offer on our house and are nearing exchange (hopefully next week!). There is a conservatory that was built during the early 1990s that when we purchased the property in 2007 no mention was made of by our solicitor in his enquiries on our behalf.

Now we are selling, our buyers' solicitor has raised the question that when the plot of land was sold to the builder of the house in the 1930s (the house is actually much older and was moved here from another site and extended to double its original size by that builder in 1935) there was a restrictive covenant saying that permission had to be obtained from the vendor of the land if the property built on it was to be extended in any way.

The vendor of the land passed away in 1962.

Our solicitor informed us yesterday that it has been discovered that the successor to the vendor is a business and that we must pay in the region of £50 to this company for retrospective permission to build the conservatory as the person who built it (not the original owner of the house as he too passed away in the 1950s or 1960s) did not get permission in respect of the covenant.

My OH spoke to our solicitors and asked if they meant we had to pay for indemnity insurance, but she said no this was not indemnity insurance.............

Just wondering if this sounds correct?

Many thanks for any comments

DVardysShadow

It sounds like you get actual permission for £50. Which is better than an indemnity.

Off topic. These restrictive covenants are a regular issue here. I begin to think that covenants like this should attract a peppercorn rent from the beneficiary - so that the covenant can go into demise if the peppercorn is not paid.

Richard_Webster

It will depend on how the covenant was worded. If it can be argued that it is only a particular person's consent that is required then the requirement for consent died with the vendor in 1962. If the covenant required the consent of the Vendor or the owner for the time being of a particular area of land then the successor's consent is required.

However if they will give a consent for £50 it isn't worth the argument.

phoebe1989seb

Thank you Richard - the covenant is worded as follows -

'Plans and specifications of all buildings or additions thereto must be submitted to the Vendor and his consent thereto in writing obtained prior to building. All buildings shall conform to the bye-laws of the local authority relative to the occupation thereof.'

This dates from 1935. The vendor of the land passed away in 1962 and the purchaser in 1935 who went on to build the house we bought in 2007 also passed away sometime during the 1950s or 1960s. The conservatory was built by the person who owned the house in 1992.

Thanks again for your help

Yorkie1

Applying Richard's reasoning, with which I agree, it seems that the covenant did not extend to the vendor's successors in title and therefore there is no way in which you could comply with the covenant now - therefore wouldn't need to pay extra to obtain the consent.

Ask your solicitor though.

phoebe1989seb

Yorkie1 wrote: »

Applying Richard's reasoning, with which I agree, it seems that the covenant did not extend to the vendor's successors in title and therefore there is no way in which you could comply with the covenant now - therefore wouldn't need to pay extra to obtain the consent.

Ask your solicitor though.

Thanks Yorkie1

When we spoke to our solicitor on Wednesday they seemed to think we would have to pay, but we intend going to see them again on Tuesday (after all these Bank Hols, lol!) to discuss further bearing in mind the comments made by yourself and Richard.

Phoebe x

Richard_Webster

OP probably shouldn't have to pay the £50 but there might be other wording in the document that defines "Vendor" to include successors in title.

Also, having approached the person who claims to be able to enforce the covenants there could be problems later because a future buyer's solicitor may want proof that the covenants were unenforceable. Buyer's solicitors tend to take a defensive cautious view.

Another point: Once the conservatory can be proved to be 20 years old then it becomes immune form any enforcement under the rule in Hepworth v Pickles so buyer won't have to wait very long for the time to elapse.