Help with problem selling, deed of covenance needed

andrew8018

Can anyone help with this?

My parents are trying to sell their flat which is currently under offer. All was going smoothly until the buyers solicitor found that their drive-way is classed as shared on the deeds. ie the driveway is shared with the neighbours.

The buyers are now saying that they will pull out unless we they can get a 'deed of covenance' drawn up which involves getting a legal document which allows mutual access to the driveway.

This is very confusing for my parents. Their solicitor is being very cagey about what this entails, cant seem to be specific about the procedure and cant tell them how much it will cost, only that it's a long, drawn out process.

Are there any legally minded people who can tell me if this is worth pursuing or should they just re-market the property and hope it doesn't crop up again and what it actually is?

Many thanks in advance

Richard_Webster

Although I'm a conveyancing solicitor I can't give you any definite answers without further information.

It sounds as if it is one of these situations where there is a narowish driveway where one side is owned by the owner of the house on one side and the other is owned by the freeholder of the flats. Priobably in practice everyone has assumed it is shared nad have ahpppliy driven up and down it. If actually there are no rights to use the other person's half width then he might be able put up a fence and stop the access.

It would be long and drawn out in that sort of case because the neighbour would have to be approached. he would wonder what all the fuss was about. There woudl be a delay while he went to see his solciitors, they looked at the deeds and advised him as to the position. if he then agreed to it then if he has a mortgage, his lender would have to be approached to agree to a deed being completed that affected their position (however theoretically). Also, if we talking about flats, the freeholder of the lfats would also have to be approached because it would prbably be necessary to get his agreement too. He might not be concerned and might want a sum of money before he signed anything...

This is all a bit speculative because I am only guessing at what has happened.

Sometimes a buyer will be satisfied with a lack of access indemnity policy which for a property worth up to £200,000 might cost about £200. The policy might not be available if the issue has been discussed with the neighbour who "shares" the access as the insurers would be concerned that he might decide to "wake up" to his possible rights to be difficult and want paying to agree to a deed.

andrew8018

Thanks for your knowledge Richard. Sounds like a nightmare alright. I know that the soloution of the indemnity policy was actually suggested by the Estate agent but the buyers (or their solicitor) were having none of it.

Oh well. things are never simple I guess.....

clutton_2

why not suggest the vendors buy it - £200 is not a lot to guarantee a sale....

andrew8018

clutton wrote:

why not suggest the vendors buy it - £200 is not a lot to guarantee a sale....

That's the problem, they'd be more than happy to do this it but the buyer's have said that they're not happy with this and will pull out unless a deed of covenance is obtained.

looks like they'll just have to go down the long and complicated route :eek:

Biggles

Surely a covenant is only required where one party owns the drive and another party is granted a right of way over it.

In this case, it sounds as though the actual ownership of the drive is shared, as it is referred to in the deeds.

In that case, surely nothing further is required, as both parties are entitled to use it by ownership? It obviously wasn't thought necessary when the parents bought the property.

david29dpo

i would second the last post. my drive is shared with 3 other houses, the drive is still owned by the developer. it was never passed on to any of the houses when the development was finished. we all have rights of way over the drive as shown in the deeds, with equal shares in its maintenance. the drive is worthless to the owner.

andrew8018

David and Biggles, I think you may be right in some sense. I'm a little confused myself. I spoke to my Father this morning and his understanding of it is this:

Whilst the fact that the driveway is shared is alluded to in the deeds, it doesn't actually state anywhere that the leaseholder has right of way and this is the problem. For this reason the buyers Solicitor have advised that a deed of covenance is needed lest any dispute (no-matter how unlikely) should occur.

It's a little silly really. I'd put money on the fact that there's been no practical problem with this since the flats were built in the 1930's but there you go.

Biggles

What does your solicitor say? We have given our views based on what you said, but the fact that it's referred to in the deeds means that someone ought to read what it actually says and tell you what that means. Really, that can only be your solicitor.

But it doesn't sound too big a deal, I access my own house through a right of way over someone else's drive and it was never a big deal to either solicitor when we bought the house.

andrew8018

I've just heard that even the solicitor doesn't want to go down the road of a deed of covenance and has said today that it's 'unnecesssary in practical terms', even though it means more work and more money for him. He's confirmed that it's a long and convoluted process, as described in the first post.

Unfortunately, the buyers solicitor has convinced them that they shouldn'y buy the property without this deed and as my folks are desperate to sell they'll just have to get it done.

Thanks for all your help