Restrictive Covenant

mpet

Hi

I have a buyer for my property and their solicitors havejust asked if I have complied with the covenants attached to my property. When I purchased the property 20 years ago,there was no mention of any covenants. I have just downloaded a copy from theLand Registry site and these covenants are dated 1903 – 10 years before my housewas built.

In the main these seem to relate to what can and can’t bebuilt on the land that had been sold, which covers 2 roads. There are clausessuch as the build cost of the house must be greater than £600, and it must beat least 15 feet from the road. However there is one clause that I have notcomplied with relating to fencing. It states that either a wall or an ‘oak pale’fence must be erected and for ever after maintained, withinone month of purchase.

As expected, the original fence is no longer in place – wehave well maintained fence – but it’s not ‘oak pale’ TBH I’m not even sure whatoak pale is! Has anyone had a similar experience- is it likely that this would cause an issue?

jjlandlord

Just tell your solicitor to replay with facts. Ie. that you have complied and have fence, but it is not 'oak pale'.
If they argue (which would be over the top) tell them that they can surely get a very cheap indemnity insurance at their own cost if they wish.

mpet

Thanks - I agree, but it just seems odd that the purchers solicitors have even bothered to ask if I have complied. It's obvious when you read the covenants that they really relate to what got built on the land, not anything (except fencing!) relevant to the here and now!

I would guess it may just be the solicitor covering their backside.

drdpj

As far as I know, positive covenants on a freehold property (like x must be built and maintained, i.e. requiring you to spend money) are only enforceable on the person who originally signed up to it, they don't run with the land - that is unless they're tied to a rent charge.

mpet

drdpj - thanks - that's useful to know and makes sense. There is no rent charge, so hopefull common sense may prevail!

da_rule

Positive covenants do run with the land, but can be passed to successors in title. When you purchased the property can you remember if you signed the Deed of Transfer as this is what will pass the covenant onto you.

If there are any negative (restrictive) covenants, these are ones which prevent you doing something on the land, then these run with the land.

If it appears that either you or your predecessors in title have breached any covenants then if the buyers solicitor is worth his salt he should ask you to take out defective title insurance to protect the buyer.

AdrianC

A paling fence is one with vertical boards or stakes - oak required by the covenant, of course - attached to either a wooden rail or on wires.


The purchaser might require you to take out an indemnity insurance policy to cover the cost of the covenant owner knocking on the door and having the tantrum they're legally entitled to, but since the risk of it is somewhere next to zero, I can't imagine that being expensive.

jjlandlord

AdrianC wrote: »

The purchaser might require you to take out an indemnity insurance policy to cover the cost of the covenant owner knocking on the door and having the tantrum they're legally entitled to, but since the risk of it is somewhere next to zero, I can't imagine that being expensive.

So the buyer can get that insurance himself if he so wishes, as I don't think he will decide not to purchase because of that.

McBozo

sorry but the seller has to put it right otherwise they are selling something defective.

Have you had all the conveyances related to the property? If you have just used the online system you only get the current title, you might not get all the past deeds one of which _may_ release you from the obligation. Your solicitor should be able to get these.

tigsly

where do you get old deeds from ?

jjlandlord

McBozo wrote: »

sorry but the seller has to put it right otherwise they are selling something defective.

Putting it right would mean installing a new fence it seems...

The seller can tell the buyer "that's the way it is, take it or leave it".

I think we're creating a lot of hot air, on the basis that the buyer might argue about the fence.
If that happens, it would be because (1) the buyer's solicitor advised them of the "breach" as is his duty, and (2) the buyer is not assessing the situation clearly.
And as usual the insurances guys are rubbing their hands.