Restrictive covenant

fizz07

After applying for planning permission we have been informed by the council that they have received a letter from one of the neighbours that our property contains a restrictive covenant preventing any extensions.

I have spoken to the solicitor that did the conveyance when we purchased the property years ago & they advised that as the original builders are liquidated we can go ahead and build once we have received planning permission from the council.

Would anyone be able to advise if it would be wise to go ahead with the extension as im now worried and would rather everything be above board before shelling out money on an extension. Any help / advice appreciated.

vivatifosi

It really depends on the wording of the covenant. Where I live I am on one of a pair of neighbouring estates. On my estate the covenants can be enforced by the developer, the management company or another homeowner. On the neighbouring estate, the covenants are only enforceable by the developer. Could you go back to your solicitor, clarify the wording and that it only relates to the original developer?

G_M

Why not look at the covenant yourself?

It will either be on the Title document (you should havea copy and if not can download from the Land Registry here for £4) or on a related conveyance or similar (again, you would have been given a copy when you bought - if not, ask your solicitor to send it!)

fizz07

G_M wrote: »

Why not look at the covenant yourself?

It will either be on the Title document (you should havea copy and if not can download from the Land Registry here for £4) or on a related conveyance or similar (again, you would have been given a copy when you bought - if not, ask your solicitor to send it!)

I have looked at the title document that was sent by the solicitor when we bought the house and the one I bought online (same thing) and it only states the following

" a transfer of the land in this title dated .... 1975 made between (1) company that no longer exists and (2) previous owners before the ones we bought the property from contains restrictive covenants "

So the details should be on a related conveyance as it doesnt give any sort of detail?

fizz07

vivatifosi wrote: »

It really depends on the wording of the covenant. Where I live I am on one of a pair of neighbouring estates. On my estate the covenants can be enforced by the developer, the management company or another homeowner. On the neighbouring estate, the covenants are only enforceable by the developer. Could you go back to your solicitor, clarify the wording and that it only relates to the original developer?

Thanks for the info looks like im going to have to track the details of this covenant as I've gone though all the documents I was provided by the solicitor when I bought the house and nothing contains anything more than what I've quoted from the title register bove.

G_M

fizz07 wrote: »

I have looked at the title document that was sent by the solicitor when we bought the house and the one I bought online (same thing) and it only states the following

" a transfer of the land in this title dated .... 1975 made between (1) company that no longer exists and (2) previous owners before the ones we bought the property from contains restrictive covenants "

So the details should be on a related conveyance as it doesnt give any sort of detail?

So you need to read the Transfer dated 1975!

The Land Registry Title docs do not replicate other documents, they just highlight/refer to them.

Just like your mortgage. The LR Title (Charges Register) will indicate that a mortgage (Charge) dated xxx exists in the name of YYY bank. It does not say how much the mortgage value was, or what the repayment terms are - for that you have to read the original mortage documents.

Same with this. Read the original document!

Land_Registry

As G_M rightly points out the covenants will be in the 1975 Transfer. If you don't have a copy of that Transfer then you can apply for one from the Land Registry using form OC2 - these types of documents are not available online.

Normally the solicitor who acted for you when you bought the property would have supplied a copy along with the register/plan as the 1975 Transfer from the developer will contain a variety of information relevant to the property.

Take a look at our FAQ on the subject of getting a copy of a deed referred to on the register - you should be able to get a copy within a matter of days

We also provide an FAQ regarding restrictive covenants but the crucial part is to have sight of the actual wording first and then identify who has the benefit i.e. is potentially able to enforce it

Richard_Webster

If the covenant says that you cannot build without the consent of the [company that has now been dissolved] then it is unenforceable.

The neighbour's letter is hardly likely to make any difference to the Council's planning decision as such matters are not relevant in planning terms, but it does flag up that if the neighbour feels strongly enough he might look at seeing if he can enforce the covenant.

He won't get anywhere if the dissolved company's consent is required. Usually this will be the case, but it can't be guaranteed.

If there is a general prohibition on building extensions then he has to show that his property has the benefit of the covenant. If the 1975 Transfer contains wording declaring that it is intended that the covenants should be mutually enforceable by the various property owners (what is called a building scheme) then he will be able to do so - but see below as to costs etc.

If there is no such wording then firstly he would have to look at what land was mentioned as having the benefit of the covenants - typically the something like the land in title XYZ 123456 at the date of the transfer or the remainder of the land not sold comprised in some conveyance a few years earlier to the builder.

Now you get to the random bit. Assume the neighbour can show that both his plot and OP's were within the same area originally intended to be benefited it now comes down to the order in which they were originally sold. So if builder sells OP's plot to A (OP's predecessor) say on 1st March 1975 and then sells the neighbour's plot to B (neighbour's predecessor) on 20th April 1975, at the time A bought, B's plot was still within the land owned by the builder and therefore benefited from A's covenant. In that case the neighbour could perhaps enforce the covenant.

On the other hand if B had bought the neighbour's plot in January 1975 the neighbour can't enforce the covenant because when B bought the builder's land didn't have the benefit of A's covenant because he hadn't yet bought the plot which happened later. In that case neighbour can't enforce but if neighbour breaches a covenant then Op may be able to enforce!

Having said all this it is quite expensive to go to court to seek an injunction to prevent building and the neighbour would probably be asked to fork out a thousand or two on account to solicitors to pay for a barrister etc. If he leaves it and doesn't do something straight away before the extension has been built he would be left with a claim for damages which would be the alleged loss of value to his property by reason of the construction of the extension - there might be something - but often not much.

In many cases the reality is that the neighbour hopes that somehow the covenant issue will impress the Council and will stop planning permission being granted - it won't. Once the neighbour gets over the fact that this won't wash he either just gives up or goes to see a solicitor to see if he can enforce the covenant. They will charge him a hundred or two for the initial advice (will he even want to pay that?). Then they will go through all the points mentioned above and may either say he has no case or say he has but it will cost £x,xxx to pursue it. Then he has to decide whether to put his money where his mouth is. At that point most people just give up!

fizz07

Thanks for the replies guys, its been a very good read

This is what the covenant states:

Not to make any structural alterations to the property or to erect any additional buildings without the prior written consent of the original builder or their successor in title.
To use the property as a private dwellinghouse for no other purpose.! (Except for a dentist’s or doctor’s surgery or a garage or other outbuildings) and to use the part of the property which has not been built on as a garden area only.
To keep the garden area of the property in a neat and tidy condition and to keep the boundary fences in good repair.
Not to do or permit any act or thing which may be or may become a nuisance to the neighbourhood or to the original builder.

Richard_Webster

without the prior written consent of the original builder or their successor in title.

OK, original builder company dissolved. Question then is who is its successor in title? Successor to what?

Does the covenant start by saying something like " The Purchaser hereby covenants with the Vendor and his successors in title to [description of some land] as follows:..."

If there are words like that - who now owns the land described? If it doesn't refer to any particular land then it is almost meaningless. At the other extreme it could theoretically mean that the consent of all the people who bought plots after OP's predecessor will be required!!!

fizz07

Richard_Webster wrote: »

OK, original builder company dissolved. Question then is who is its successor in title? Successor to what?

Does the covenant start by saying something like " The Purchaser hereby covenants with the Vendor and his successors in title to [description of some land] as follows:..."

If there are words like that - who now owns the land described? If it doesn't refer to any particular land then it is almost meaningless. At the other extreme it could theoretically mean that the consent of all the people who bought plots after OP's predecessor will be required!!!

I've requested a copy of the covenant from 75 but solicitor has left for annual leave till end of sept i was only sent the extract and and not the whole thing.

When reading the above I thought the same as it read to me that as no builder then I need consent off the successor hoever that may me. Very confusing now.