Breach of restrictive covenant

SusanG123_2

Hi,

I hope someone can help me,

We are purchasing a property, and have received the transfer deeds. In the fourth schedule, there is a restrictive covenant stating that no tress, building etc. to be built within 3 metres of a boundary - we believe because the drainage is running underneath this area.

There a 2 well established trees here

There is another restriction that there should be no trees next to a boundary wall which is owned and maintained by the council - again there are established smaller trees here.

We are not too sure what our options are, can the sellers just ignore this or can we enforce that it is investigated to make sure these trees which shouldn't be there have not impacted on the sewage or the wall?

We understand that there is something called indemnity insurance? But we don't think this will cover us cost wise if the pipework was to crack due to the roots etc..

Our solicitors have said that they have raised it with the sellers solicitors but not actually told us what the implications and options are? Can anyone enlighten me?

moneyistooshorttomention

What type of trees are they?

Different types of trees have roots spreading to various widths on the one hand and going down to a different depth on the other hand.

SusanG123_2

I don't know I'm afraid, the two that have grown within 3 metres of the boundary are fairly tall and broad

The other one isn't so tall but is quite broad. I don't know the first thing about trees and not being very helpful! Sorry,

getmore4less

Why not ask the council why they are not enforcing the covenant.

if it the councils wall they are probably the only ones that can enforce.

moneyistooshorttomention

getmore4less wrote: »

Why not ask the council why they are not enforcing the covenant.

if it the councils wall they are probably the only ones that can enforce.

As I understand it - if OP makes any contact with the Council about this she would invalidate any indemnity insurance she takes out.

I guess you could say another name for indemnity insurance = "in case the other party finds out about it" insurance.

comeandgo

If someone needs to get to the drainage and you have trees in the way you will have to pay for the removal of them and if it is emergency drainage problems that could be quite costly. Some of the houses near us have thus covenant, some occupiers agree to it and there is just grass, some have flowers and small trees.

SusanG123_2

I understand the implications of the trees but where do we stand before we exchange contracts that the sellers are in breach of this?

G_M

Your choices are:

* insist the sellers remedy the breaches & remove the trees. They won't.
* buy the property and hope no one enforces the covenants (unlikely) and the drains (if it IS because of drains) don't crack
* take out indemnity insurance (or get the seller to take it out). If anyone (council?) enforces the covenants, the insurance will pay to remove the trees. If the drains crack, the insurance won't pay
* drop the sellers in the sh*t and tell the council (you'll also negate any indemnity insurance you take out)
* walk away from the property.

SusanG123_2

Ah thank you, very black and white

Fingers crossed for them to agree to remedy the breaches, surely they have to if we hold them to ransom?

G_M

SusanG123 wrote: »

Ah thank you, very black and white

Fingers crossed for them to agree to remedy the breaches, surely they have to if we hold them to ransom?

They are equally likely to put the property back on the market.

If I had lived there for, say, 10 years without anyone worrying about the breach, I would probably not start cutting down established trees that I liked to satisfy a buyer.

Or if the breaches pre-existed when I bought the property 3 years ago.

But it all depends how desperate they are to sell. To you.

matttye

Have your solicitors advised whether or not the burden of the covenant will actually pass to you? They do not pass from one buyer to the next in all circumstances.

It's possible to apply for the removal of a restrictive covenant as well but it's probably risky.