Beneficiaries of Covenant

Robster88

Hello,

I am wondering how one would determine who the beneficiaries of a covenant would be?

Is this information likely to be explicitly stated on the full charges register? (It is not stated on the title register, only the original parties involved in the forming of the covenant)

Is it the case that the person (or their descendants) who originally asked for the covenant would be the beneficiaries, or are the beneficiaries the people who still benefit today from the existence of that covenant.

For example, say the back garden of a property had a restrictive covenant forbidding the erection of a dwelling on the land. Would the beneficiaries of that covenant be the person (or their descendants) who originally set up the covenant (who may now have no knowledge of such a covenant) or would the neighbours of the said property be beneficiaries, as the covenant benefits them by maintaining the open space/views/light etc.

I've searched online for a definitive answer but have so far drawn a blank..

moneyistooshorttomention

In similar circumstances - one of the houses very near me has various restrictive covenants on what can be done with that site.

I regard myself and the other neighbours as being the beneficiaries of those covenants - ie with some say over what can and cant be built near our properties.

As the property is derelict (but is being lived in:eek:) and I don't believe it would be worth anyone's while to try and "rescue" that house ever - hence chances are it will be knocked down at some point - then I am keeping an eye open to see what happens as to whether something worse than a derelict house might happen to that plot at some point.

Brock_and_Roll

Legally, the current beneficiaries of any historic covenants (depending on the original wording) are likely to the legal descendants or assignees of the person or company that created the covenant.

So if in 1899 there was a sale of land and a Mr Smith created covenant that on the relevant land no be allowed to hang their washing out on a Wednesday, then it would be either the person (or more likely the people) who have subsequent inherited from Mr Smith that in theory are the beneficiaries of the covenant and able to enforce it, or it would be the person to whom Mr Smith sold the land to if this was before his death.

However, in practice legal precedent indicated that in most cases such covenants will only be enforced by the courts if in any way the beneficiary is otherwise disadvantaged. So for example, if Mr Smiths successor still lives next door then they could enforce the covenant, but if the successor(s) live 50 miles away the court tends not to support enforcement.

So knowing that site next door to you has covenants on it is not really much use to you unless you are the beneficiary of the covenant. If the beneficiaries are long dead or moved away, the land will be just subject to the normal planning/development rules.

Brock_and_Roll

I regard myself and the other neighbours as being the beneficiaries of those covenants - ie with some say over what can and cant be built near our properties.

.[/QUOTE]


You need to check the wording of the covenant - usually it uses wording such as benefiting "assigns and successors" of the original covenantor.

G_M

You have to read the wording.

mumps

Brock_and_Roll wrote: »

Legally, the current beneficiaries of any historic covenants (depending on the original wording) are likely to the legal descendants or assignees of the person or company that created the covenant.

So if in 1899 there was a sale of land and a Mr Smith created covenant that on the relevant land no be allowed to hang their washing out on a Wednesday, then it would be either the person (or more likely the people) who have subsequent inherited from Mr Smith that in theory are the beneficiaries of the covenant and able to enforce it, or it would be the person to whom Mr Smith sold the land to if this was before his death.

However, in practice legal precedent indicated that in most cases such covenants will only be enforced by the courts if in any way the beneficiary is otherwise disadvantaged. So for example, if Mr Smiths successor still lives next door then they could enforce the covenant, but if the successor(s) live 50 miles away the court tends not to support enforcement.

So knowing that site next door to you has covenants on it is not really much use to you unless you are the beneficiary of the covenant. If the beneficiaries are long dead or moved away, the land will be just subject to the normal planning/development rules.

I once bought a house, in one of our larger cities, with a normal sized city gardens. When we saw the solicitor he explained their was a covenant so we couldn't keep pigs on the property. I still wonder where they thought we might keep pigs.

bouicca21

When country dwellers first started moving into cities, there really was a problem about them keeping pigs - people initially didn't realise that you couldn't live in a city in the same way as in the country. Seriously.

Land_Registry

Robster88 wrote: »

Hello,

I am wondering how one would determine who the beneficiaries of a covenant would be?

Is this information likely to be explicitly stated on the full charges register? (It is not stated on the title register, only the original parties involved in the forming of the covenant)

Is it the case that the person (or their descendants) who originally asked for the covenant would be the beneficiaries, or are the beneficiaries the people who still benefit today from the existence of that covenant.

For example, say the back garden of a property had a restrictive covenant forbidding the erection of a dwelling on the land. Would the beneficiaries of that covenant be the person (or their descendants) who originally set up the covenant (who may now have no knowledge of such a covenant) or would the neighbours of the said property be beneficiaries, as the covenant benefits them by maintaining the open space/views/light etc.

I've searched online for a definitive answer but have so far drawn a blank..

If the land/property is in England or Wales then the first thing to appreciate is that the benefit of restrictive covenants is not registered - only the burden is registered. The benefit is an equitable (not legal) right and you can research the difference online.

The second thing to note is that ,as G_M posts, you need to read the covenants and more importantly the covenanting clause to understand who may have the benefit.
Unfortunately to many people think that the benefit stays with the parties involved, namely the person/company who imposed the covenants in the first place.

That can be the case but only where they have retained land which they owned at the time when the covenants were imposed.

So if we take a simplistic example Owner A owns a plot of land and builds 40 houses on that plot of land. Each is then sold and restrictive covenants of the sort you have quoted are imposed on each new plot owner. Owner A moves on to a new development having sold all 40 plots and all of the land originally owned.

Does Owner A or descendants have the benefit - No

Does each of the 39 other plot owners have the benefit - Yes, most likely. I say most likely simply because in may cases it is hard to identify as the benefit is not registered.

So the key is what was the benefiting land and who owns it - they are the ones with the benefit and if they wanted to impose that benefit they would need to prove that they had it.

Robster88

Land_Registry_representative wrote: »

If the land/property is in England or Wales then the first thing to appreciate is that the benefit of restrictive covenants is not registered - only the burden is registered. The benefit is an equitable (not legal) right and you can research the difference online.

The second thing to note is that ,as G_M posts, you need to read the covenants and more importantly the covenanting clause to understand who may have the benefit.
Unfortunately to many people think that the benefit stays with the parties involved, namely the person/company who imposed the covenants in the first place.

That can be the case but only where they have retained land which they owned at the time when the covenants were imposed.

So if we take a simplistic example Owner A owns a plot of land and builds 40 houses on that plot of land. Each is then sold and restrictive covenants of the sort you have quoted are imposed on each new plot owner. Owner A moves on to a new development having sold all 40 plots and all of the land originally owned.

Does Owner A or descendants have the benefit - No

Does each of the 39 other plot owners have the benefit - Yes, most likely. I say most likely simply because in may cases it is hard to identify as the benefit is not registered.

So the key is what was the benefiting land and who owns it - they are the ones with the benefit and if they wanted to impose that benefit they would need to prove that they had it.

Thanks for your clear response and explanation - that has helped clarify things. It seems it would be difficult to prove who has the benefit of a covenant as the benefit is not registered and so not explicitly stated.

It is my understanding that only someone who benefits from a covenant can ask the land tribunal to enforce it, but the difficulty in proving who the beneficiaries are would greatly complicate that process.

The scenario you describe is close to the reality I am alluding to. The original developer of a housing estate placed covenants on a number of properties that would ensure that the Transferee and the persons deriving title under him would observe and perform certain conditions and stipulations.

One of these was to not erect a property (or walls) in the garden. A new owner of a house on the development (who has this restrictive covenant in their title) has been granted permission to build a house within the garden.

It seems rather unfair that a covenant like this can be completely ignored, as I doubt it could be proven who the beneficiaries of such a covenant are and so it is unlikely to be enforced.

AdrianC

Robster88 wrote: »

It seems rather unfair that a covenant like this can be completely ignored, as I doubt it could be proven who the beneficiaries of such a covenant are and so it is unlikely to be enforced.

Which is exactly why it can be completely ignored.