Enduring covenants

Jolly_Roger

We are about to move into a relatively new estate, which was built in the 1990s.

We would like to add a conservatory to the property, although there is an enduring covenant, which means we have to seek permission from the original estate builders in order to do so.

Does anybody else have any experience of doing this?

Interestingly, one other house in the street, albeit a semi- and not a townhouse that we have bought, does already have a conservatory.

We also notice that our own property now has pvc windows and the original trees have been removed, which is not permitted by the covenant either - and I would bet no permission was sought! How strong are enduring covenants?

G_M

They are as strong as the person with the right to enforce them.

With covenants on modern estates, it is common that they are put in place by the estate developer purely so that houses retain their original design while the estate is still being developed and properties sold. The Developer does not want to be trying to sell new house, while others in the estate are more attractive (ie have nice fancy conservatories added) or indeed less attractive (eg commercial vehicles parked on the driveway putting off prospective buyers).

Once the estate is finished, the developer moves on and does not care a fig!

However, it depends who the covenant benefits, whether they are still around, and whether they care. The covenant CAN be enforced if the beneficiary wishes to enforce....

Jolly_Roger

That sounds about right, thank you!

Yes, the covenant also covers commercial vehicles from being parked there, which really is a bonus since the road I currently live in is clogged with the blessed things

Land_Registry

G_M largely covers it for you

I suspect you mean restrictive and not enduring though but the point is they do 'run with the land' for ever more (unlikely to be released or extinguished) so in many ways are enduring.

There are a number of threads on MSE re restrictive covenants and how then bind the land and are likely to benefit each and every property on the development.

The current view to dealing with such things tends to be insuring against the possibility of someone coming forward, proving they have the benefit of the covenant and threatening to enforce it. Your conveyancer can advise on this for you and will probably have details of insurance providers willing to provide such indemnity insurance as appropriate.

Finally, I doubt if a covenant re commercial vehicles is likely to change things re who parks what and where in the same way as it appears not to have stopped a neighbour building a conservatory

Jolly_Roger

As suggested above, we contacted our conveyancer, who suggested we ask the seller to take out an indemnity policy on the property covering any legal action that the original builder might take out in respect of changes that have already been undertaken that were clearly in breach of the covenant. The cost is a one-off payment of £110.00, which seemed very reasonable.
He was also of the opinion that the builder would not seek to prevent construction of a conservatory, but that any subsequent permission received should form part of the deeds.
So thanks to all the observations by the poster; much appreciated.

Dan-Dan

Jolly_Roger wrote: »

As suggested above, we contacted our conveyancer, who suggested we ask the seller to take out an indemnity policy on the property covering any legal action that the original builder might take out in respect of changes that have already been undertaken that were clearly in breach of the covenant. The cost is a one-off payment of £110.00, which seemed very reasonable.
He was also of the opinion that the builder would not seek to prevent construction of a conservatory, but that any subsequent permission received should form part of the deeds.
So thanks to all the observations by the poster; much appreciated.

Why should the seller pay for it , and not you?
I would be interested to hear what answer you get

Surrey_EA

Dan-Dan wrote: »

Why should the seller pay for it , and not you?
I would be interested to hear what answer you get

If I've understood correctly, the seller is already in breach of the covenant by having the windows replaced and trees removed. Therefore it is understandable that the buyer wishes the seller to cover the cost of the policy.

Jolly_Roger

Exactly that.

Potentially, we are buying into a liability! Since the current changes were not undertaken by us, the solicitor believes the seller should pay.

Dan-Dan

Fair enough , still be interested to hear what your seller says though when asked , post back?

Jolly_Roger

Our seller agreed without question and the policy is now being attached to the deeds. They paid.

Interestingly, the insurance policy contains a gagging clause that does not allow me to mention that, as owner of property A, I have insured it against breach of convenant. This is a standard clause in the document.

I wonder what all that is about?

jamie11

Jolly_Roger wrote: »

Our seller agreed without question and the policy is now being attached to the deeds. They paid.

Interestingly, the insurance policy contains a gagging clause that does not allow me to mention that, as owner of property A, I have insured it against breach of convenant. This is a standard clause in the document.

I wonder what all that is about?

I think that clause is made so the insurance company can use it as a get-out in case of a future claim. It would show that you already knew about the breach.
An instance might be that if a wall fell down on a property and injured someone you could not expect to buy a policy after the event and expect it to cover the damage.

So it raises the question, are the previous breaches covered by the new policy?