Covenant on the land being ignored

lethe

Ok, I know I am in 'talk to a lawyer' territory with this, but I am so far out of my depth I wouldn't even know which lawyer to talk to, and I couldn't afford that conversation anyway. This is fairly complicated, but any advice would be appreciated, even if it only applies to one bit of this puzzle!


Bought a flat - it has a small plot of land out back covered in trees (part of the same freehold). It is in a conservation area and there is also a covenant on the land saying it must be preserved as a rose garden for the use of the tenants of the block of flats in which I now own a leasehold. Rose garden has not been maintained, and is currently unusable, but there is evidence it was still a communal garden for the block of flats as recently as 10 years ago - not a bad run given it existed since at least 1936. Its not part of the 'common area' on the leasehold, though I get the impression it once was.

Land developer that owns the freehold on my flat and the land applied for planning permission to build a house on it - the council gave it to them. Only had a week to respond - they submitted their application just after my search came back, and the deadline for responses was only a week after I moved in, when I found out about this. (for clarity, I knew they had applied previously, and been rejected, hard) Objected of course, pointing out the covenant, conservation area and a dozen other issues - got a few concessions, particularly regarding my privacy (window of new house will be directly opposite my bedroom, and now has to be covered with some kind of distortion film), but there is no way I would have bought this flat if I knew this was going to happen. Not very happy, to put it mildly - this kind of deception should be criminal.

Today I received a letter informing me they are going to sell the land (auction next year) for the block of flats only - keeping the patch of land out back, presumably so they can build the house. The interesting bit is the flat has a road (more like a driveway) down the side - its required as access to build the house, and will ultimately become the houses driveway. My lease gives me access rights to that road, and its where the bins for the block are stored. They want to keep ownership of the road when they sell the block of flats, despite the rights of way and bins.


So, my understanding at this point is that I could get a court order preventing them from building it, i.e. enforce the covenant, but I also understand that to be extremely expensive - law for the rich basically, and not something I can afford. Today’s letter, of them splitting the land, looks like it might give me a (small) lever however. I am wondering if it would be possible to force the access road to remain with the flats - given the access rights and its where the bins are (there is nowhere else they could go). Seems common sense, and like something a government body might enforce (council? which department?). It might just force them not to sell, and hold onto the flats until they have built the house, but it might pass some tipping point regarding effort vs profit, or at least inconvenience them a bit.

So, anyone know if that can be done, and if so how? Any other advise would also be greatly appreciated:-)

davidmcn

lethe wrote: »

Today’s letter, of them splitting the land, looks like it might give me a (small) lever however. I am wondering if it would be possible to force the access road to remain with the flats - given the access rights and its where the bins are (there is nowhere else they could go). Seems common sense, and like something a government body might enforce (council? which department?).

Think you're barking up the wrong tree - the rights of way exist irrespective of who owns the land, they're not an argument which can be used against transferring the ownership. And I'm not sure why any government body would be interested in it? It's a private matter.

moneyistooshorttomention

Basically = if they couldn't get access for a house then they couldn't build a house on that garden. That sounds logical and is probably accurate.

I guess it boils down indeed as to what exactly it says in the deeds/etc about the ownership of that road. Whether there is some phrase stating words to effect of "The road is for access to the flats ONLY" and not indicating it can also be used for access to the garden (ie their proposed building plot).

What is the exact wording?

EDIT: Further point being that there have been many threads on here re whether covenants can be enforced. The answer usually seems to boil down to "Who are the beneficiaries of that covenant?". In your case - that would be the flat-owners.

Followed by "Are those beneficiaries still around to enforce their right to that benefit?" = Yes you are....and then the question arises as to whether it would cost money to do so/what procedure it would be/what cost it would be.

That brings up the thought of getting together with other flat-owners and agreeing you all want to enforce your right to the benefit of that covenant and, possibly, letting the would-be housebuilder know how much it would cost them to bribe you to shut up and not fight them. They aren't to know you cant afford to fight them.

Land_Registry

moneyistooshorttomention is quite correct that as far as the covenant is concerned it will invariably come down to who owns the land which has the benefit of that covenant. Proving such things can be difficult though.

Where I would differ is the suggestion that you as a leaseholder would have the benefit. You may find that if the land on which your flats are built has the benefit of the covenant then it is with the freeholder and not you as you lease part of the building only.

The right of way again comes down to who owns the land, which again I suspect is the freeholder. Whilst you may have rights over it as part of your leases giving someone else a right doe snot stop you exercising your right so not too sure where you can go with that one.

If I have understood correctly the developer owns both the land to the rear and your freehold title. If so then you may have to look elsewhere for someone to enforce it and hope that the evidence relevant to the covenant indicates other land which has the benefit.

As I said that can be difficult but would start with identifying the covenant and the originating deed and working back from there, namely who imposed the covenant and what land did they own at that time.

So as you already appreciate enforcing any breach of the covenant is down to a landowner who can prove that they have the benefit of the covenant and that it has been breached. If the developer does not back down in light of such action then it would be for a court to decide upon.

NOTE - the planning authority take sno account of covenants or other registered interests when approving (or not) planning applications. They will not for example check the registered title itself and the only link is often the applicant confirming they own the land the subject of the planning application. The authority don't check the register to confirm that though.

bouicca21

If the freeholder is selling the land on which the block sits, do the residents not have the right of first refusal? And hence the right to enforce the covenants?

Land_Registry

Certainly something to explore re buying the freehold but what the rights are around doing this is not an area we would cover. We would register the purchase but not how they arrived at it.

Still need to identify the benefiting land though as at this stage I don't think the OP has that information. Seems clear that there is a link as the covenant was for the blocks benefit but some wider investigation will be needed I suspect