Restrictive Covenants - current owner actions

nigelwhitworth

Similar to my other post, about previous owner actions, in that coverage equal to the amount of the property seeming excessive - but different in that the specifics that are driving this seem ridiculous.


The covenants on our property state that for a period of 5 years from 1994, no alterations were to be made to any building. A later covenant, issued once houses were actually built, extended that out until 31 Dec 2004.


In 2009, we applied for planning permission to convert our garage into a study. It was successful, and we did everything by the book. Now that we are in the throes of selling, however, the buyer's solicitor is querying a second covenant, directly after the one regarding no alterations to any building for 5 years from 1994, which states that a garage is not to be used for any purpose other than for the storage of a private motor car.


Is a converted garage still a garage? If so, they are saying that we are breaking covenants by storing something other than a private motor vehicle in that building. It seems farcical - especially as the original intent was likely to prevent commercial vehicle storage.


I may post the actual covenant statements in a bit, but need to attend to something else right now...

AnnieO1234

Post the covenants but from what you've said, the garage shouldn't have been converted according to the RCs.

X

nigelwhitworth

The conversion is not being queried. It's part b) which is causing the kerfuffle, because they are saying it is not time bound. Part a) is.


The following are details of the covenants contained in the Transfer dated 31 May 1994 referred to in the Charges Register:-


.
.
.


(a) Not to construct or place any additional building or other erection on the property or make any external alteration in or addition to the dwellinghouse and garage erected or in course of erection thereon or the walls fences or the front garden thereof for a period of five years from the date hereof without the previous written approval of the Company to a detailed drawing thereof PROVIDED THAT on any such application for approval as aforesaid the Purchaser shall pay to the Company such reasonable fee for the consideration of such application as the Company shall from time to time prescribe whether the approval of the Company to such application be given or not


(b) Not without such licence as aforesaid to use the property or suffer the same to be used for any purpose other than a dwellinghouse in single occupation nor to use the garage (if any) other than for the purpose of garaging a single private motor car (or two private motor cars in the case of a double garage) nor place or suffer to be placed on any part of the property any showboard placard or nameplate other than a board for the sale or letting of the property


A later covenant in the title (I only have a photocopy, so cannot cut/past as easily) clearly stipulated no building works prior to 31 Dec 2004. So there is no issue with the fact that the alteration has been made. Just that I don't have a car in the study! Or is the study still a garage! All completely crazy - and easy money for an insurance company, particularly if they flog you insurance for the entire property or nothing at all.


Thanks


NW

G_M

nor to use the garage (if any) other than for the purpose of garaging a single private motor car (or two private motor cars in the case of a double garage)

In all probobility, the intent of this clause is to prevent people running a small business from their garage ie car repair workshop, ebay business with constant van deliveries if garage used for storage etc.

Personally I think that a good legal case could be made that, Planning Permission having been granted, and the garage converted for domestic use (part of the 'dwelling house'), there now is no garage, and hence the 'if any' within the clause becomes relevant.

However, only a court could ultimately rule on interpretation.

I would therefore respond to the buyer's solicitors with: "Since there is no garage included in the sale of the property, there is no question of any conflict with Section X(b) of the transfer dated 31 May 1994.

nigelwhitworth

Thanks. That will be my next response then. I have already asked my solicitor if it even still is a garage - but what tends to happen is absolutely nothing for a week or more. Then just the same demand from the buyer's solicitor again.


Did you have a view on my other question regarding Restrictive Covenant Indemnity Insurance? I.e. is it reasonable to require insurance for the whole property value, when the aspect being queried is known to be but a fraction of that. I.e. reinstating the study as a garage would cost £5,000 maximum - probably much less. The sheer inconvenience to the new buyer would not amount to the difference between that and the entire property price.

G_M

* if you get indemnity insurance, the difference in premium cost will ne negligible. £150? Which is peanuts in the scale of things

* From the buyer's perspective though (at least if it was me!) it is pointless. He's buying the house partly cos he wants the extra study. Indemnity insurance would not help him keep that study IF the covenant was enforced

Personally I'd stick to the line that the clause is irrelevant, so no indemnity insurance needed (unless buyer chooses to pay himself0.

nigelwhitworth

G_M wrote: »

* if you get indemnity insurance, the difference in premium cost will ne negligible. £150? Which is peanuts in the scale of things

* From the buyer's perspective though (at least if it was me!) it is pointless. He's buying the house partly cos he wants the extra study. Indemnity insurance would not help him keep that study IF the covenant was enforced

Personally I'd stick to the line that the clause is irrelevant, so no indemnity insurance needed (unless buyer chooses to pay himself0.

OK - thanks. But I did get a quote, from one of the sites, via someone who has a signon. The policy for £50,000 of cover is £100. The policy for the whole house cover is £173. An extra 73% isn't what I'd call peanuts to be honest.


I will continue to pursue the not necessary option.

frisbeej

If there is no garage (as you've converted it) then the covenant doesn't apply, the converted garage now forms part of the "dwellinghouse".


It doesn't say anything about not converting the garage internally and as the time constraint of the first clause had expired, you could have also altered the outside.


Seems strange that a solicitor doesn't interpret it that way.

Richard_Webster

Has Op checked at Companies Huuse that the company that had the benefit of the covenants still exists? If it doesn't then they are unenforceable.

However a solicitor is not going to accept that allowing physical alterations to the house also allows a change in the way parts of the house are used. It doesn't, so a policy would be needed unless the covenant is unenforceable. The covenant is probably there to prevent too much on road parking.

nigelwhitworth

Richard_Webster wrote: »

Has Op checked at Companies Huuse that the company that had the benefit of the covenants still exists? If it doesn't then they are unenforceable.

However a solicitor is not going to accept that allowing physical alterations to the house also allows a change in the way parts of the house are used. It doesn't, so a policy would be needed unless the covenant is unenforceable. The covenant is probably there to prevent too much on road parking.

I checked tonight. Sadly both parties mentioned on the covenant still exist, albeit as dormant entities. From looking at the address of the house builder, it seems that firm is probably now part of Taylor Wimpey.