Breach of restrictive covenant

Land_Registry

G_M has covered the options available to you as a buyer and from a conveyancing perspective. As with all such things it is a matter of choice on the part of the buyer/seller and how they view such things. The seller for example may have gone through the exact same thought process when they bought but equally they may not have done simply because they never read the register and/or their conveyancer did not raise it as an issue for example.

The wording of the covenanting clause will help you understand who had the original benefit of the covenants and the land they owned at the time. The covenanting clause will be along the lines of 'X hereby covenants with Y for the benefit of .......'

If the covenants are restrictive then they will invariably 'run with the land' so will pass from one buyer to the next.

Applying for the removal of a restrictive covenant is an option although it is rarely undertaken or achieved - this is perhaps more to do with the process and cost involved and such applications tend to be made with regards restrictive covenants which are no longer relevant or make sense in modern times.

Indemnity insurance tends to be the modern way of covering the risk of the landowner with the benefit of the covenants seeking to enforce any breach. Your solicitor can advise on that for you and if the seller won't pay for it, just like any buy/sell negotiation whether that is a deal breaker or not is then down to you.

societys_child

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

Doesn't sound like this will have a happy ending:eek:

stator

You could always ask them to get a professional tree survey. Someone who can identify the trees and give an opinion on whether the roots may cause damage to any sewers or drains (if you know where they are) and could also give advice on how costly it would be to remove the trees.

SplanK

Are you able to identify if these tree's were planted by the builders of the property at the time of the original sale?


You may find that this is a general restriction applied to all houses in the development to ensure that the look of the development is maintained and you may not have drains in that area but others do. The wall should be quite obvious however!


Options are above as advised already, however if you are still considering the property I would investigate the drainage runs to see if the established tree's have already caused damage and their location.


I would also speak to an arborist regarding the positioning of the tree's to see if they pose an immediate or future threat to the wall or drainage runs.


A good solicitor will advise you NOT to ignore this and is probably just awaiting a response from the sellers before advising you on your next steps, hopefully! If you do contact anybody such as the council or the person who could benefit from the restriction then DO NOT give exact details of the house. If you do this, then any insurance available will be void and of no use. In addition, check what the insurance provides. They generally only cover the cost of legal costs and not the remedial action (in this case, the full removal and making good of the trees and surrounding area) which could cost a small fortune!

Lifes_Grand_Plan

SusanG123 wrote: »

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?

You are paying the solicitor good money to advise you on things like this, yet you would rather ask for advice on a forum full of unknowns.... :eek:

SusanG123_2

Well we have an outcome to this, we paid for a drainage survey which was all fine - our neighbors drain has actually collapsed!
The seller (which was a probate property so they had no interest in the house) paid for an indemnity policy to cover the breach and we plan to take the trees down when we complete after exchanging today!!
So all's well that ends well,
Thanks for the advice,