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Historical covenant problems
JennyW_2
Posts: 1,888 Forumite
I'm looking for some advice please...
We live in a new build, 3 years old.
We are in the process of selling, and 9 weeks into the process.
Our buyer's solicitor has issues with an historical convenant which is this:
in 1981 Mrs A sold off an area of land to Kier Construction and one of the covenants was to remove deposits of clay - this is understandable if they are going to build. However they then sold the land on to Bloors and now here we are on a new development of 100 houses.
Our buyer's solicitor wont let this go saying that Kier may one day want to come and dig for clay and is worrying our buyers. We are trying to get Bloor's solicitors to rectify the situation but it's proving a long drawn out process and weeks are just passing by.
This issue has not been raised on any other houses that I'm aware of and 5 this year have sold, 2 completed last month.
Our solicitor has suggested an indemnity policy if it cannot be resolved but our buyer's solicitor has told our buyer's that an indemnity policy will de-value the property. Blimey, don't most houses come with indemnity policies?
Apparently the buyers are very keen on our house and don't want to lose it but have said they are "being guided by their solicitor".
You should see the issues we've had to overcome on the house we want to buy but that's the way we are I guess and we appreciate that all houses have covenants to either accept or you walk away.
Our solicitor said that if 100 solicitors were selling our house, then perhaps 1 may pick up on this historical covenant, and we have him
We don't know whether to tell our buyers that we are going to put the house back on the market as we feel their solicitor is worrying them over something that will never happen, then wait for a new chain to play catch up, or keep battling on and never get any further along the process.
I'm just wondering what's the best thing to do?
We live in a new build, 3 years old.
We are in the process of selling, and 9 weeks into the process.
Our buyer's solicitor has issues with an historical convenant which is this:
in 1981 Mrs A sold off an area of land to Kier Construction and one of the covenants was to remove deposits of clay - this is understandable if they are going to build. However they then sold the land on to Bloors and now here we are on a new development of 100 houses.
Our buyer's solicitor wont let this go saying that Kier may one day want to come and dig for clay and is worrying our buyers. We are trying to get Bloor's solicitors to rectify the situation but it's proving a long drawn out process and weeks are just passing by.
This issue has not been raised on any other houses that I'm aware of and 5 this year have sold, 2 completed last month.
Our solicitor has suggested an indemnity policy if it cannot be resolved but our buyer's solicitor has told our buyer's that an indemnity policy will de-value the property. Blimey, don't most houses come with indemnity policies?
Apparently the buyers are very keen on our house and don't want to lose it but have said they are "being guided by their solicitor".
You should see the issues we've had to overcome on the house we want to buy but that's the way we are I guess and we appreciate that all houses have covenants to either accept or you walk away.
Our solicitor said that if 100 solicitors were selling our house, then perhaps 1 may pick up on this historical covenant, and we have him
We don't know whether to tell our buyers that we are going to put the house back on the market as we feel their solicitor is worrying them over something that will never happen, then wait for a new chain to play catch up, or keep battling on and never get any further along the process.
I'm just wondering what's the best thing to do?
0
Comments
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Can you post the exact wording of the covenant? It is pointless speculating over a covenant which might be providing for something quite different to what we would imagine 3rd hand.You might as well ask the Wizard of Oz to give you a big number as pay a Credit Referencing Agency for a so-called 'credit-score'0
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here you go....
....with full power at all times with or without vehicles of any description including the appropriate earth moving equipment for the purchaser to enter upon the land for the purpose of excavating and removing the said deposits of clay in accordance with the deed of grant dated 2 July 19810 -
And who granted that to whom?
Was it granted by a seller to a purchaser or was it a power reserved by a seller which preempts the rights of the buyer?You might as well ask the Wizard of Oz to give you a big number as pay a Credit Referencing Agency for a so-called 'credit-score'0 -
Put another way,thank you for trying to help but I don't even know what your question means
- who has the right to extract clay?
- who gave them the right to extract clay?
- which one of them was buyer and which one was seller?
You might as well ask the Wizard of Oz to give you a big number as pay a Credit Referencing Agency for a so-called 'credit-score'0 -
ok, thanks. I only have a small extract of the paperwork but will try and answer....Put another way,
- who has the right to extract clay? Kier Construction (who then went on to sell to Bloors who built 100 houses)
- who gave them the right to extract clay? Mrs A, the original owner. She sold to Kier
- which one of them was buyer and which one was seller? Kier = buyer, Mrs A = seller
0 -
- who has the right to extract clay? Kier Construction (who then went on to sell to Bloors who built 100 houses)
- who gave them the right to extract clay? Mrs A, the original owner. She sold to Kier
- which one of them was buyer and which one was seller? Kier = buyer, Mrs A = seller
Fairly straightforward. No one it appears has reserved a right to extract clay.
If Mrs A had reserved the right to herself, it would preempt the rights of Kier and Mrs A could come and extract clay with her dragline excavator.
As it is, now, the right to extract clay has passed with the land and the effect of the covenant is that if you decided to extract clay from your garden with your dragline excavator, Mrs A would not have any grounds to stop you or to claim royalties on the clay you did extract.
The only thing to watch out for is whether in any of the subsequent sales any seller reserved the right to extract clay. As I see it, the right remains live, but passes with the sale of the property - so in theory, you could still reserve the right but sell the property, which would scupper your buyer's mortgage.
You need to check out my take on this - but I am surprised that your buyer's solicitor has not addressed this in his own mind - and surprised too that yours has not laid it to rest too.You might as well ask the Wizard of Oz to give you a big number as pay a Credit Referencing Agency for a so-called 'credit-score'0 -
You need to check out my take on this - but I am surprised that your buyer's solicitor has not addressed this in his own mind - and surprised too that yours has not laid it to rest too.
Thank you for taking the time to post
How can I put this to my solicitor to pass on without making it appear I have seeked help on a forum?0 -
Do you understand the arguments sufficiently to explain to a sympathetic listener - eg your OH?Thank you for taking the time to post
How can I put this to my solicitor to pass on without making it appear I have seeked help on a forum?
If you do, I would suggest that you ask your solicitor "Who owns the mineral rights now?". If the answer is that you own them in respect of your property, then that should be the end of it, you sell those rights with the house. If the answer is that the rights belong to anyone else, ask for an explanation. And ask for it in writing if any of it is unclear - at least you can summarise the argument here!. And if your solicitor bluffs and blusters, get another one.You might as well ask the Wizard of Oz to give you a big number as pay a Credit Referencing Agency for a so-called 'credit-score'0 -
thank you, I have just sent an email to ask.
Would I find the info anywhere on any of my documents when we bought?0
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