Removing restrictive covenant

emv

We have a covenant placed on some of our land, which is effectively a large driveway between two buildings that we own, which prevents us from parking there(!) It was described as a path & for some time we had solicitors for us & the seller discussing this. The seller was adamant we had to complete by a certain date and at one point refused to discuss issues (including this one) any further so we had to proceed without having the covenant removed. This isn't a path, there is room to park about six cars and as the estate on which we live is short of parking, it makes sense to park there. (In fact we have been parking there for the 15 months we've lived here). The seller is still selling most of the remainder of the estate and has started to take photos of where people are parking etc. We have submitted a planning application which includes parking spaces not on the 'path' itself but one some areas which are currently small grassed areas and not actually the areas covered by the covenant. But to be on the safe side, I'd like to get the covenant removed.

Am I right in thinking that the people who could object to this would be our neighbours (in whose interest it is that we continue to park there)?

I've tried looking into removing a covenant and have found this:
"
Court declarations

You can apply to the court for a declaration to determine:

• Whether or not a restriction does, or may in certain circumstances, exist
• What the nature of a restriction is and if it is enforceable

This can be useful where there is any uncertainty about the covenant itself or whether or not action may be taken as a result of any breach of a restrictive covenant. A negative declaration can be applied for which would remove any need to apply for indemnity insurance."


Presumably if I did this, I could feel reassured that action couldn't be taken against us? But the webpage I found this on (http://www.mylawyer.co.uk/how-restrictive-covenants-affect-land-use-a-A76052D76388/) doesn't make it clear how I'd actually apply to do this. Can anyone help?


Em

DandelionPatrol

With a covenant, you need to determine who the covenant was in favour of at the time it was agreed. If for example it is the original developer and this is who is selling the land in question, you need to negotiate with them to have the covenant lifted. If it is some other arrangement, you need to tell us more to establish whether a court route or negotiation is the way to go.

Running_Horse

Is anyone interested now? We looked at a house with a covenant stating no conservatories. The house had one, as did nearly every other house in the road.

wwl

Applying some lateral thinking...I'm curious as to what the actual wording would be - as the covenant is against the property, I'd imagine it's something like not "allowing parking" as opposed to actually not parking, as the latter wouldn't affect anyone but the freeholder.
So if you were to put up a "no parking" sign, would that be sufficient to satisfy the covenant, regardless of whether anyone actually took any notice of the sign?
And what action could actually be taken in practice? How much would it cost for anyone to take any action?

Land_Registry

As posted it is the wording that is important here as you need to understand both the covenanting clause and the covenant itself in order to establish a way forward. Comments relate to land/property in England or Wales only.

The covenanting clause and the parties involved at the time can help to identify who has the benefit of the covenant. If say for example a developer owned the land, developed it into 9 plots and separate access then the benefit is likely to have passed to each of the now 9 plot owners - if the developer still owns some of the land then they may still have the benefit (along with others) but if they sold up and moved on then they are no longer involved.

Can you add the wording for others to read and comment on perhaps?

As also posted of course covenants can be breached so it is down to the landowner(s) with the benefit to then enforce them. Such covenants are often imposed at a specific point in time and for specific purposes. Over time those reasons can change and what may have been seen as a path once but is now used as a driveway is a case in point. T

Running Horse's post is a typical one where the original developer imposed covenants on each plot owner not to change the layout of the estate by adding conservatories, parking caravans on drives, putting For Sale signs up and so on - the developer likes to keep their development as originally intended as they feel that will help sell all of the plots in the quickest timeframe. Once sold they move on of course but the covenants remain in place as explained above and benefit all the plot owners. Whether they then seek to enforce them is up to them but they remain enforceable and that is the conveyancing issue many new owners have to consider.

Removing a restrictive covenant from a title is rare but if you research the Lands Tribunal this may shed some light on the process involved, which explains why it is rare.

If you google removing a restrictive covenant you will also find a number of legal firms offer some guidance on the subject covering what happens when you breach them and what may happen if you ignore them.

MSE also has a number of threads which cover specific cases as well and some of the details posted above

emv

Thanks everyone. Actually the footpath was renamed "private road" in the transfer deed we signed (though it isn't a road, it's impassable at one end as it's too narrow for a car to get down!). This is the wording:

"[FONT=&quot]Restrictive covenants by the transferee[/FONT] [FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]For the benefit and protection of the Estate and each and every part of it so as to bind the Property into whosoever’s hands the same may come the Transferee hereby covenants with the Transferor and also (subject to the right of the Transferor to withdraw, waive, release or vary the covenants, stipulations and conditions) as a separate covenant with the Owner of every Plot that the Transferee will at all times observe and perform the following obligations :-[/FONT]

[FONT=&quot][/FONT]

[FONT=&quot]3. Not to park motor vehicles on or obstruct in any other manner any part of the Access the Footpath or the Private Road."[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]The access is "the roads and paths within the Estate designated for common use to provide access to Plots" - fine with not parking there though the developer has asked us not to park directly outside one of our buildings, which is frustrating & has led to a shortage of parking - technically this is access & still owned by him so we have complied.
[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]The footpath is a path between our main building & a woodwork studio, wouldn't affect anyone else if we blocked this although we haven't!
[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]We have submitted a planning application which includes details of parking - 3 of the spaces do fall within the 'private road' (which on our plans actually extends right into our private car parking area!) so in some ways if the developer doesn't object to that on the grounds of parking breaching the covenant, that could be a positive sign?[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]Em
[/FONT]


[FONT=&quot]
[/FONT]

G_M

That all seems pretty clear.

You cannot park on these areas. And the covenant can be enforced by "[FONT=&quot]the Estate and each and every part of it" [FONT=&quot]eg if your 'neighbours' are part of the estate then they can enforce.

[FONT=&quot]Your Planning application is entirely separate from the covenant.

[FONT=&quot]Just because the local authority approves a planning application [FONT=&quot]which permits par[FONT=&quot]king does not negate the covenant.

[FONT=&quot]The developer may or may not object to your planning application, but whether he objects or not, and whether the appl[FONT=&quot]ication succeeds or not, he can still enforce the covenant.

[FONT=&quot]The planners will not take account of the covenant in their consideration.[/FONT]
[/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT]

wwl

G_M wrote: »

That all seems pretty clear.
You cannot park on these areas.[FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][/FONT]
[/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT]

But anyone else can.

emv

The thing is that it's in everyone's benefit for us to keep parking there as then we don't compete for spaces in the communal car park (3 visitor spaces for 13 houses) - there are only 3 houses occupied plus us & the spaces are already heavily used. So by parking on the driveway & getting visitors to park there we ease the parking issue. Which is why I wondered about getting the covenant removed.

G_M

Ah! Well that's entirely different question.

So far we've been responding with the legal position ("Presumably if I did this, I could feel reassured that action couldn't be taken against us?").

Now you are talking about practicalities and common sense - no one says the law is comonsensicle!

Yes - clearly what you suggest is sensible. So speak to the developer. If they agree with you, they may either informally turn a blind eye to future parking, or formally assist you in getting the covenant removed.

emv

The problem is that they're being awkward in many ways & objecting to everything we do so I can't see them agreeing to anything that would benefit us, even if it benefits them too. May have to just wait until they've sold all the land & talk to all the neighbours I guess.