Breach of restrictive covenant less than 12 months old

Bluebumble

My husband and I had a conservatory built on out property in may 2011. We obained planning permission but didnt realise that we needed convenant consent from wimpey homes until now. We are in the process of selling put house and had a request from the buyers solicitor for a copy of our covenant consent. Naturally we don't have it.

My understanding is that we cannot obtain indemnity insurance because the breach is less than 12 months old? Is this right?

If so, does that mean our only option is to apply for retrospective consent?

We cannot ask our solicitor as unfortunately they are shut for the Christmas break. We are due to exchange and complete in 2 weeks but I can't see that happening now

Any advice would be appreciated

Running_Horse

Were you not advised of the covenant when you bought the house?

Bluebumble

Thanks for your replies.

Yes its any building, including sheds which thankfully we dont have. The house was built in 2002 and wimpey completed the estate in 2003. My husband bought the house from new. According to the deeds the covenants have 80 years to run.

Worst case senario, they say no. Then what happens? Can we fight it? There are 19 other conservatories on the estate according to planning.

He said he wasn't sure whether he was told of the covenant or not but if he was he didn't remember about it when we came to build the conservatory.

FireWyrm

It seems a tad unfair to ban conservatories to be honest since it's probably the most common type of home improvement. What is their basis for this covenant? For instance, we had a covenant on our former home which forbade satellite dishes, this covenant was put in place before there was such a thing as Sky and when we came to sell, our solicitor said it was unenforceable since everyone in the country has a satellite dish if they watch TV. I dont know whether this is something that you could use, but the idea is the same surely. You really really need to speak to your solicitor and a few voices on the internet isnt going to be good enough here...

Bluebumble

Thanks for your replies hopefully wimpey will give us retrospective consent to help us get moving. I'm hoping it won't take long.

Richard_Webster

your lawyer will be used to writing such letters seeking belated consent...though they will enquire without reference to your house to start with just to make sure that the company will not hold you to ransom...they wont but best to check. probably be £100 or so fee, that is all.

I agree - the difficulty is that if you cannot get through to anyone at Wimpeys who can give you an answer as to who to write to and their likely response the letter can go into a black hole at the developer's office. Once such a letter is written there is no chance of getting an indemnity policy.

So I would initially try to do what TimmyT suggests - it so often depends on how helpful the developer's switchboard is - they refer you to one person and you explain the hypothetical point. If they are the right people they will tell you to send in some plans/photographs etc and a cheque for probably around £100 and hopefully within a couple of weeks you get your consent. If the person you speak to isn't the right one because the switchboard person didn't understand what you were on about, then you hope the person you speak to at least knows who to transfer the call to - and on you go - getting transferred until hopefully you get to the right person.

Although TimmyT says she wouldn't accept an indemnity policy my view would be that if an insurer is prepared to provide a policy that is their worry. Mostly they do want 12 months to have elapsed and the cheaper "self-issue" policies would all have that requirement - however it might be possible to get a bespoke indemnity policy from an insurer if your solicitors explained the circumstances, but it would probably cost significantly more than the likely cost of a consent from Wimpeys.

FireWyrm

Just for clarity Richard, can you explain how an indemnity policy actually works? I have one for a conservatory/lean-to on my house and although I needed one, I didnt know what it does exactly. Does the insurer undertake to re-imburse the cost of the conservatory if the local council orders you to tear it down? Even if you didnt put it up in the first place?

Slinky

Bluebumble wrote: »

Worst case senario, they say no. Then what happens? Can we fight it? There are 19 other conservatories on the estate according to planning.

To put your mind at rest, why not go and knock on a few doors where people have conservatories and ask them how their experience with Wimpey was on this issue?

Surely after the development has been completed and they've sold all the houses, Wimpey aren't really going to care what you do. What they don't want you doing is stuff that will affect the sales of houses whilst they are still building.

betsie

We have similar covenants on our deeds and ours is a Bovis house. When I phoned them to ask how I got permisin for something they basically said they were no longer interested and it was upto the local council to give permission. As you have planning permission I can't see there would be a problem.

Yorkie1

betsie wrote: »

We have similar covenants on our deeds and ours is a Bovis house. When I phoned them to ask how I got permisin for something they basically said they were no longer interested and it was upto the local council to give permission. As you have planning permission I can't see there would be a problem.

The problem is because they haven't lifted the restrictive covenant terms, so they theoretically still apply and therefore any conservatory is technically still in breach.

A verbal "we don't care any longer" is not easily provable in law if someone wants proof that the covenant has not been breached and that they will not be liable for subsequent enforcement proceedings.

When you come to sell, how do you intend to prove that Bovis won't enforce the covenant? You need something in writing from them to that effect.

NeverAgain_2

... You need something in writing from them to that effect...

Or you need a buyer who takes a certain view, which could happen in the OP's case.