How do I enforce a restrictive covenant?

rosielx

We live next door to a grade 2 listed cottage which has a large front garden. The current owners are selling the bit of garden closest to us as a building plot without planning permission. The cottage and rest of garden is being sold seperately. We will be objecting to the planning permission as building a house there would mean loss of privacy etc for us and would destroy the setting of the cottage which is about 400 years old. It's one of a group but not in a conservation are. The property plan and title states that "successors in title" that the land shall be used for horticultural purposes and no building shall be erected. Dates from 1994. Does state land would be fenced off but it wasn't. As far as I cantell from plan land is same bit as building plot. Is it expensive to try and legally enforce a restrictive covenants as it will not be taken into account by planning? Should I get parish council involved? I dont have spare funds for legal battle. If planning obtained how do you stop building work while sorting this matter out? Thank you for helping

bryanb

Restrictive covenants can only be enforced by those who applied them in the first place. That's usually the person selling the land in question.

rosielx

The house has changed hands a few times since covenant was written. Does that change the situation? It's all a bit confusing

bryanb

rosielx wrote: »

The house has changed hands a few times since covenant was written. Does that change the situation? It's all a bit confusing

As far as I know, after a few changes of owner you might as well forget them unless the original one was a government dept or someone who still has an interest in preventing something happening.

What is for sure is that others, ie neighbours cannot enforce them.

Yorkie1

Restrictive covenants are usually written so that they benefit one party, and bind another (and their successors in title - i.e. the people who own the land subsequently).

Frequently, the benefitted (sp?) party is the person who sold the land. Either a property developer in an estate, or a person who has split their land up and sold part of it.

You will only be able to enforce the covenant if you are the legal beneficiary, as I understand it.

If you are not the legal beneficiary, you need to identify who is, and see whether they are willing to enforce the covenant through the courts.

Otherwise you simply have to rely on the planning laws. Just because it's been sold as a building plot doesn't mean that it will get planning permission. Have you double checked the council site to see whether any form of PP has been applied for?

G_M

rosielx wrote: »

The house has changed hands a few times since covenant was written. Does that change the situation? It's all a bit confusing

Most covenants bind the two parties involved and their successors in Title.

So you need to know who the original parties to the covenant were, and then who their successors are.

Only they will be able to enforce.

You,of course, can object in thenormal way to aPlanning Application, but DO RESEARCH.

Only valid reasons for objection will be takeninto account. "It will spoil my view" is not a valid reason.

Either
* research via books on Planning
* research via your council's planning website
* employ a surveyor specialisingin planning law
* go and speak to a Council Planning Officer in person

.... or all the above!

Land_Registry

As G_M states you would need to establish who the original parties were to the covenants and their successors in title.
You would also need to establish, if possible, the extent of the benefiting land.

Our online information around what are restrictive covenants explains how they 'run with the land' and that is why restrictive covenants dating back many years can still be enforced in some circumstances.

We would always recommend seeking legal advice as to such matters as this can also cover the other issues you raise around planning, listed buildings and so on - although some initial research can help to gain a wider understanding of such matters.

You can start by trying to identify the 'benefiting land' which is likely to be that land/proeprty which was owned by the person(s) imposing the rest covts at the time. From your perspective the key is likely to be whether your own property formed part of that benefiting land. If it did not then you are most unlikely to be in a position to enforce those rest covts, which ties in with Yorkie1's post.

Your original post asked whether it would be expensive to enforce such covts - as enforcement is done through the courts it can prove to be very expensive but a lot depends on the legal advice both sides receive. If there is a legal argument to be had then costs can be high but if the enforcement is a correct one the landowner subject to the rest covts may not take the matter further for example so costs can be relatively small.

Land registration and the Planning aspects are not directly linked so I cannot add to the posts already made on that aspect.

eddddy

I'm no expert on this, especially compared to the LR rep, but when you find the 'benefiting land owner' (assuming it is not you), they may take a different view to you.

For example, they may see this as an opportunity to make some unexpected money, by offering to release the covenant in return for a (perhaps substantial) payment.

rrtt

I have no knowledge of the legalities compared with the experts above, but it might help your peace of mind - or confirm your fears - to find out what your council's general attitude to granting pp is by looking at what they've previously granted or refused, so go online to the appropriate section of your local council to have a look. Or look back thru some old recent local papers (ours has a section detailing the fate of all pp applications right down to the tiniest thing such as pruning a single tree under a preservation order). At least it might give you a better idea of what you're facing.

Whereabouts do you live? Is it town, village or open countryside? might make a big difference. Our local council has become a lot pickier and more restrictive on anything being developed in our v. beaut countryside (Yorkshire) over the past few years.

PS Do you have other neighbours who might be affected and would object? If so, it might be helpful for you to get together ...

Land_Registry

eddddy wrote: »

I'm no expert on this, especially compared to the LR rep, but when you find the 'benefiting land owner' (assuming it is not you), they may take a different view to you.

For example, they may see this as an opportunity to make some unexpected money, by offering to release the covenant in return for a (perhaps substantial) payment.

It's a fair point edddy makes and reinforces the need to separate the various options for 'objection'. All are relevant in their own way

• Building next door to a listed building?
• Local planning policy
• Neighbours or other local objectors
• Identifying who owns the land which has the benfit of the rest covts

John_Pierpoint

bryanb wrote: »

As far as I know, after a few changes of owner you might as well forget them unless the original one was a government dept or someone who still has an interest in preventing something happening.

What is for sure is that others, ie neighbours cannot enforce them.

That is not quite true the can be an "estate covenant" for the benefit of the neighbours and intended to maintain the quality of the surroundings against property developers. Prior to the post war town and country planning act it was just about the only protection available.

Here is a posh example:

http://www.esherplace.com/legal/summary-of-covenants/
http://www.dailymail.co.uk/news/article-1280651/Unite-union-facing-opposition-plans-expand-100m-headquarters.html

Must be almost as frustrating as trying to tell Ed Miliband what to do.