Restrictive covenant

raaraa

We are in the process of purchasing over home (1950's) and have received the report from the solicitor. The seller who has owned this home since it was built, is going to a care home.

There is a restrictive covenant 'Not to alter the property without the Transferor's consent in the 1948 conveyance'.

Does the transferor refer to the seller ? Will this affect us in any way if we are to extend the property, which we are planning to do with planning permissions and building regulations?

Many of the houses in our street have had extensions, some major, built. I am querying this with my solicitor but checking if this is something normal?

G_M

When it was built the then seller (perhaps the Developer, or owner of the land, or neighbur - let's call him A) drew up an agreement (the 1948 conveyance) with the then buyer (who is now selling to you - let's call him that no alterations could be made without his (A's) consent. Perhaps he did not want a bigger building appearing next door to him or whatever.

B is now selling to you (C). The covenant is still in force, so if you wish to alter/extend etc, you will need the consent of (A).

(A) may have died, but someone will have inherited his estate (D). Or (A) may have sold the property next door to (D) (if the beneficiary related to a property), or sold his Development business to (D) (if the beneficiay was a company) in which case you will need consent from (D).

raaraa

Thank you G_M. It makes sense.

I assume there is no obligation for A or D to grant the permission. And if they do, they may charge some fees to do so (wonder how much?). Is that right?

And if they don't, is there anything that can be done legally to override it?

anselld

... or you hope (A) or (D) don't notice, which is most probably what the neighbours have done.

anselld

raaraa wrote: »

Thank you G_M. It makes sense.

I assume there is no obligation for A or D to grant the permission. And if they do, they may charge some fees to do so (wonder how much?). Is that right?

And if they don't, is there anything that can be done legally to override it?

You can apply to have it removed ..
https://www.gov.uk/appeal-upper-tribunal-lands/overview

.. but you may have to compensate the beneficiaries.

Hoploz

We had this, it's pretty common. I knew about it but built anyway. House was built in 1958 so the builder was long gone, the previous owner had died (it was a probate sale) so I decided nobody would enforce it. I had to buy an indemnity policy when I sold which was a hundred or so pounds.

Land_Registry

The covenanting clause needs to be read in conjunction with any covenants a s this will define the terms for you e.g. 'Transferor and his/her successors in title.....'

As others have posted such covenants run with the land and the common approach to such things seems to be indemnifying against any identified risks as Hoploz mentions

anselid mentions applying to have them removed and this can be a route chosen but in my experience it would be rare to do so for this kind of covenant.

Your solicitor/conveyancer should be able to advise on the options available and the risks involved.

Lord_Baltimore

There ought to be a time limit on covenants; it seems ridiculous that they can remain extant in perpetuity not least because after a period of time, they may have become irrelevant. Fifty years ought to do it after which the beneficiary should have to review and renew the covenant, if appropriate and in consultation with affected parties.

anselld

Land_Registry_representative wrote: »

As others have posted such covenants run with the land and the common approach to such things seems to be indemnifying against any identified risks as Hoploz mentions

I would agree that is the normal route. However, in this case the OP has not (yet) breached the covenant so there is nothing to indemnify.

Is it possible to indemnify against a wilful future breach of covenant? I am not sure about that.

Land_Registry

anselid - Hoploz referred to indemnity when they sold on and that was what I was alluding to. Apologies as I should have made it clearer

Hoploz

Yes - the buyers solicitor asked whether we were aware of any breaches to the covenants on the house. We were, so we stated it had been breached and they asked us to provide the indemnity.