Breach of restrictive covenant and right of access

G_M

gallu wrote: »

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?
from the costs of legal risks. But if someone valid enforces the covenant, the onsurance will not protect you from a court ordering you to stop using the garden for parking..

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.
As above. I the land is not yours, and the owner makes you stop using it, insurance will cover any legalcosts but will not over-ride the other owner's rights

Do I need to buy 2 separate indemnity policies covering each issues separtely? Yes. I do not wish to lose this property as I have already invested lot of money in mortgage application and searches.
You have to weigh up the risks. It may be better to write off the costs so far, rather than risk buying the house and not being able to use the drive. Only you can decide how much them drive matters to you.

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?
Means you can walk over (drive over? does it specify?) that bit of your neighbour's land
Problems? Who knows? If the neighbour objects, and you want to enforce, you'd have to (ultimately) take him to court (where you'd probobly win. Alternatively you could invite him to tea, offer cake, and resolve it amicably.

Are those scenarios 'a problem'?

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

//////////////////////////////////////////////////////////////////////////

davidmcn

moneyistooshorttomention wrote: »

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

We do.

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?

Google generally try to avoid obviously private roads i.e. ones signposted as such, probably just to avoid arguments rather than because there are sound legal reasons why they can't drive down them.

dc197

stator wrote: »

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.

Good call. Covenants should have a beneficiary, and if that beneficiary no longer has any benefit in enforcing the covenant then you might treat it as spent.

For example, in a new build estate there might be a covenant to not make any alterations until the whole estate is sold by the developer. They have a benefit as it keeps the estate pretty and uniform.
After they're all sold, the developer has no or little benefit in stopping you altering the house. So even if there was not "until all sold" clause in the covenant, one could again say it's spent once all houses are sold.

Does the covenant say or imply who is the beneficiary of the no-parking rule? Are they around? Could they challenge that your parking on the drive causes them loss or lack of benefit?

Land_Registry

Don't forget a restrictive covenant runs with the land so will have been imposed by a landowner (perhaps the developer) and therefore benefits the land owned at that time.
It doesn't read like a development but a relatively small area of land/property so identifying the benefiting land may not be too onerous.

As stator posts covenants can be relatively low risk but that probably depends on how and when this one was put in place and how aware the benefiting landowner(s) is/are.

Re the rights (plus the covenant) it sounds like there has been some historical issue re access/rights of way etc hence the details mentioned - always difficult to follow without sight of the reality though and in conjunction with the reality on the ground.

gallu

Dan-Dan wrote: »

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

Yes , we have to cross a dropped kerb to access the drive.Will it be an issue?

stator

gallu wrote: »

Yes , we have to cross a dropped kerb to access the drive.Will it be an issue?

Some councils are cracking down on people with drives and no dropped kerb. Do a search on your local newspaper website to see if your council is one of them.

fezster

If you have a dropped kerb, I don't believe the council will have an issue. And the restrictive covenant (1) is likely not to be enforced, as said by others above. It's worth finding out who benefits from it and then make a judgment call.

However, I'd be most concerned with (2):

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.

Who does this land belong to? If it is the neighbour, then you could find that the current or future owner denies you access. I'd be looking to get an agreement in place as part of the purchase to guarantee you this access in future. They may insist on being compensated for this.

With regards to indemnity policies - your seller should be made aware that any potential purchaser will be asking for this, and whilst they can refuse to pay for them, they'd most likely face the same issue with any future sale. If you are buying with a mortgage, the mortgage company will require the policies to be in place.