Breach of restrictive covenant and right of access

gallu

hello fellow MSE,

I am a FTB desperately in need of help. I am due to exchange next week. I got some issues and still a very BLUR to me being FTB. I shall number my enquiries and will appreciate your kind advice and suggestions as what I should be doing.

1) the current seller has a driveway in existence and the title deed says,front garden can not be used for parking. Breached of restrictive covenant. Seller says, driveway has always been in existence and refuse to pay for indemnity policy. If we buy Indemnity policy ,will we be protected from future legal risks?

2) second issue, Solicitor mentions ,From the land registry filed plan, it would appear that part of the driveway in practice encroaches on land outside of the property included within the seller's title.This means it is necessary to gain access over other parts which do not belong to the seller in order to gain full access to the driveway. Solicitors wants Indemnity policy and again the seller's solicitor doesnot need otherwise.

Do I need to buy 2 separate indemnity policies covering each issues separtely? I do not wish to lose this property as I have already invested lot of money in mortgage application and searches.

3) Finally, the seller's property has the benefit of a right of access over a small area to the front of the neighbouring property? says shaded hatched blue in the title plan.What does it mean? will I have future problems with the new neighbour?

sorry for the long post. Any advice or suggestions greatly appreciated as I dont want to end up in future disputes and legal issues.

many thanks,
gordon

stator

The first question is this: Does the driveway matter to you?
If the answer is yes then you should look into whether someone could force you to remove it. Even an indemnity policy won't help you keep the driveway if a court order requires you to remove it.
If the driveway doesn't really matter to you then just buy the indemnity and carry on because it's a minor matter and worst case scenario you have to remove a driveway and park on the street. No big deal right?
The indemnity should cover your legal costs and any loss of value in the house (I think).

The right of access is quite normal. It may be due to an old pathway where the original access to your house meant walking over someone else's path. As long as the existing access is legal then I wouldn't worry about the other access which is no longer used. If it's not used no-one will care.
If you still use access across someone else's land then you just have to check with your solicitor that the legal wording is ok so that you know you can continue to use it forever.

Neither sound like huge issues to be honest

gallu

many thanks Stator.I think driveway is important to us .(3 children and work). will it the council who can order to remove the driveway or can it be any of the neighbour who can raise the objection?


current seller bought the house 8 yrs ago and never had any problem.

moneyistooshorttomention

gallu wrote: »

current seller bought the house 8 yrs ago and never had any problem.

Let's rephrase that to be "Current seller tells us that he never had any problems". He may or may not be telling the truth on that.

Re that bit of access over someone else' land - whose land is it that you would require that access over (eg the next door neighbours?). Also - what type of access is it that is laid down in your Deeds as being (I imagine those Deeds only state pedestrian access)?

Dan-Dan

gallu wrote: »

many thanks Stator.I think driveway is important to us .(3 children and work). will it the council who can order to remove the driveway or can it be any of the neighbour who can raise the objection?


current seller bought the house 8 yrs ago and never had any problem.

Do you have to cross a dropped kerb to access the drive?

davidmcn

gallu wrote: »

If we buy Indemnity policy ,will we be protected from future legal risks?

Yes, that's the point of it. Or rather, the insurers will pay for the costs associated with those risks if somebody challenges you in the future.

Do I need to buy 2 separate indemnity policies covering each issues separtely?

Or one policy covering the two risks.

Do you need them? Well, you do if your mortgage lender needs them. Does your solicitor say you need indemnity cover?

Finally, the seller's property has the benefit of a right of access over a small area to the front of the neighbouring property? says shaded hatched blue in the title plan.What does it mean?

It means the property has a right of access over whatever that area is. We haven't seen the title plan so we don't know what's there or why you need access over it.

will I have future problems with the new neighbour?

Why would you? Their title deeds will say you have a right of access over that area.

Ozzuk

The main risk is you lose access to your driveway. Without knowing who benefits from the covenant it's difficult to know how high a risk this is. In this situation I'd certainly want indemnity insurance or I'd walk away.

Situations that have existed for years have a habit of changing when new owners take over. Have other houses done similar? Have you done your due diligence and talked to the neighbours?

Also keep in mind your solicitor should be advising you on all these issues, if you proceed against his advice you'll have no comeback. But also, they won't have actually seen the property so it is always best that you be fully aware of things like boundaries and any potential issues (like RoW).

moneyistooshorttomention

Maybe you could take photos of the areas concerned and show them to your solicitor?

Easier to see "in person" what an area is like or, failing that (as solicitors don't visit the property concerned) - then photos are the next best bet.

davidmcn

moneyistooshorttomention wrote: »

Maybe you could take photos of the areas concerned and show them to your solicitor?

Easier to see "in person" what an area is like or, failing that (as solicitors don't visit the property concerned) - then photos are the next best bet.

Google Streetview is a godsend to the conveyancer.

moneyistooshorttomention

davidmcn wrote: »

Google Streetview is a godsend to the conveyancer.

Which is a good point. Don't know if they do use it though?

Though not all properties are on Google Maps - I guess they didn't come to mine, for instance, because its an unadopted road? Don't know if they are like that with all unadopted roads or it was just this one for some reason?

stator

gallu wrote: »

many thanks Stator.I think driveway is important to us .(3 children and work). will it the council who can order to remove the driveway or can it be any of the neighbour who can raise the objection?


current seller bought the house 8 yrs ago and never had any problem.

There are potentially several people who could object to the driveway:

The council (pressumably) own the pavement and if there is no dropped kerb they might get upset that you are driving over their property and damaging it. Some councils install bollards to stop people driving over pavements onto their driveways if they don't have permission.
The council also might object if there is no planning permission for the driveway.

The owner of any land you have to drive over might object. This might just be the council but you situation is a little confusing.

If there is a covenant about not having a driveway then someone will have the 'benefit' of that covenant. This might be the original developers of the estate. It might be the council. It could be a neighbour. Covenants are generally low risk, they aren't often enforced. The people who have the benefit often aren't around and often don't care.

Your main concern should the the council. If you want to take out an indemnity policy and buy the house anyway, do NOT contact the council. If you ask them about it you won't be able to get the insurance policy. The insurers are hoping that no-one will notice, so if you tell the council there is a much higher chance they will cause you grief and the insurers won't pay out.

So you have two options:
1) Buy the indemnities and accept the risk of losing the driveway
2) Pull out and walk away