Solicitor did not advise of restrictive covenant

Veryskint

Hi can someone advise please, my friend moved to this area about 18 months/ 2 years ago, and has started to put up a fence. Her neighbour has complained, saying that as we have restrictive covenants in place that require open plan front gardens, the fence cannot go up.

When I moved here 9 years ago I was given a copy of the covenants by my solicitor. When my friend moved here more recently she was not made aware of the covenants. She has now been in touch with her solicitors who advised that as the covenant is not registered with the land registry documents, they did not need to send her a copy of it.

To my mind, either she cannot be held liable to restrictions she had no knowledge of, or the solicitor had an obligation to get all details from the vendors solicitors, including the covenant, and are liable in some way for the current problem, or the vendors solicitor is at fault for not supplying the details.

Can someone advise how this works please?
thanks

ging84

I'm not a lawyer but my understanding of how these restrictive covenants work is that they are specific to each transfer, the transferor binds the transferee into the covenant, usually one of the conditions is that they must bind their successor into the same covenant, some times there is a lack of due diligence and that does not happen. In these cases it ends up in the hands of the lawyers and the courts to decide if the covenants still apply based on all the facts.

G_M

I may be wrong.... but I think if a RC is registered with the Title at the LR then it is enforcible.

If it is not on the Title, then each buyer has to sign Deed agreeing to the RC, otherwise it is only binding on the original owner/signatory.

I'm happy to be corrected though..

xylophone

either she cannot be held liable to restrictions she had no knowledge of,

A weak argument - the fact is that there is a restriction- that she didn't know about it would not prevent those who have the benefit of the covenant from being able to enforce it if it is within their right to do so?

[Deleted User]

I did see a programme about three months ago about this kind of issue. Not exactly the legal/solicitor side of it but about the householders side of it. It was an entire estate that was supposed to be open plan. One householder erected a waist high fence to stop children wandering off and a zealous neighbour reported him to the county planners. The fence erecting householder was allowed to keep the fence (think it was a programme called 'The Planners'), because it was still judged as not detrimental to the estate and the planner could see why he needed it.

Veryskint

the RC is NOT registered at Land Registry, and I wondered if the solicitors were at fault for not finding this information and passing it on?
thanks in advance

Land_Registry

If the properties are part of a single development then invariably each plot (house) sale would comprise near identical covenants, easements etc within the first plot sale to the first private owner. Each registered title would then refer to that Transfer directly e.g. A Transfer dated x made between A Developer and B contains restrictive covenants.

Within such Transfers of plots on an open plan development you will often see covenants which restrict how the front of the properties can be altered etc.

You state that the covenants are however not registered on the title but that they are, presumably, registered on the neighbour's title. Is that correct?

If that is the case and the property was part of the same development is there any mention of a Transfer from the developer to a first private owner?

The answers may have some bearing on the way forward although ultimately it is legal advice that would be required.

pimento

Could your friend grow a hedge instead?

Yorkie1

deannatrois wrote: »

I did see a programme about three months ago about this kind of issue. Not exactly the legal/solicitor side of it but about the householders side of it. It was an entire estate that was supposed to be open plan. One householder erected a waist high fence to stop children wandering off and a zealous neighbour reported him to the county planners. The fence erecting householder was allowed to keep the fence (think it was a programme called 'The Planners'), because it was still judged as not detrimental to the estate and the planner could see why he needed it.

The council planners have absolutely no say in the enforcement or otherwise of restrictive covenants - they only have a say in the planning permission side of things, which is a completely different aspect.

Restrictive covenants need to be sorted out in court, not through the council.

(NB. This all assumes the council is not one of the parties to the covenant)

Veryskint

I have checked with the planning office and she is allowed to put a fence up where she wants to, as it is not in front of the property line - but I wondered whether her solicitor failed in his duties by not asking the vendors solicitor about the covenant, or the vendor's solicitor failed by not advising the purchaser's solicitor? thanks

Land_Registry

As Yorkie1 mentioned planning and rest covts are not directly linked

Planning would advise re building lines as this is standard to planning regs etc

As far as failure of duty is concerned it all comes down to what is on the register. The buyer's solicitors would check the register for such matters and refer them to the buyer themselves for awareness and understanding.

If you can answer the questions posted previously then it would help us to understand the issues a bit more.