Advice please! - new build easement issues

venna

We've had a nightmare time trying to buy a house. and had to give up on last purchase due to structural issues. So late in the day we decided to go for a local new build as would be quick and simple as need to move 1st July.


New build: checked everything and paid deposit. Then we got leasehold from the developers, via solicitor, and turns out the plans we had seen were wrong. We knew there was an easement adjacent to the house BUT it also appears to turn and take up most of our garden. Our problems are now:


1 - the covenants are so restrictive we are not even allowed to plant ANY shrubs or put any type of 'temporary structure' on the area. So use of the garden is restricted. But the developers have already planted shrubs on the easement (using incorrect plans) and assure us 'its OK because they are shallow rooted'. No, the contract doesn't allow for that and would leave us liable for any damage. Plus the sewer can supposedly be dug up anytime and soil dumped on rest of the garden and we're told the water company doesn't have to put the garden right again.


2 - the sewer under the easement has two 90 degree turns (old sewer diverted around house) which worry me due to increased chance of blockage and problems. The developers haven't been able to give me any info how the turns are made so we can't assess how high risk of blockage is (e.g. staged turns).


The developers (major company) have given us a minimal apology (even their staff were surprised by the easement) and have given us the freehold as compensation. They refused to lower the purchase price. The house was nearly finished (end of development) and we had already had reduction in price and some extras were already inside.


I wouldn't be worried if it wasn't for just how restrictive the covenants are and the 90 degree angles in the sewer. Will we have sewer issues and will be able to sell in the future. Giving up on the purchase would be difficult as would mean rented with children and pets.


Can anyone give any advice?

dc197

Who benefits from the easement? And for what purpose does it exist?

What do you mean by "given you the freehold"? Were you buying a leasehold property and they have now thrown in the freehold too? That's generous compensation.

Will there be a manhole over the sewer turns? That would allow easier inspection and clearance. I can't imagine that a future buyer would be concerned with the angles of your sewers pipes; it certainly didn't cross my mind when buying recently.

venna

That's reassuring you wouldn't have an issue. We feel that for a large house having a plain lawn and fence garden will be very restrictive and impact on re-sale. I had planned for a playhouse, raised beds, paving etc but none of this is allowed.


Perhaps I should have said there have already been sewerage issues attributed to a pumping station malfunction (about 100m away). As our plot has the turns in the sewer we presume that's why it impacted most on it. In the future if debris/fat is going to collect anywhere it'll be under our garden.

dc197

Who benefits from the easement? And for what purpose does it exist?
(I could guess that it is for the sewers, but please confirm)

What do you mean by "given you the freehold"? Were you buying a leasehold property and they have now thrown in the freehold too? That's generous compensation.

moneyistooshorttomention

How long are you planning on keeping the house?

If its a "stage on the ladder" house and you are planning on moving again in few years thats one thing and bad enough. If its meant to be a long-term house then thats quite another.

I'm just thinking that I might think about it (possibly...and a "not that likely" verdict as to proceeding). If it's a long-term house then there is no way I would allow my garden plans to be restricted so much - and I would not proceed (even if desperate).

venna

Good point on the longevity. We were hoping this move was going to be the forever house, but this new build definitely not. Though even thinking of starting the moving process again is going to be scary after this one (a horrid year).


I can confirm the easement is to provide ease of access to the sewer should the water company ever want to dig it up. I can also confirm the house was going to be leasehold and they have given us the freehold. To be honest I don't see that if we move/sell within 10 years that having a 240 year lease vs a freehold will make much difference to potential buyers. I wasn't bothered about the freehold but it was all they would offer. And service charges were very small and covenants remain the same.

moneyistooshorttomention

So - if its just the water company and just in case they wish to dig up the sewer - then there is the question as to what the odds are they might be likely to dig it up (and I'm guessing that would be influenced by the composition of nearby households - eg families likely to do fat-heavy meals and put "fat" down the drains and women in the relevant age group putting "other materials" down the drains).

I believe water companies are allowed to dig up sewers if they need to anyway - even without specific easement allowing for it (ie in order to keep the whole system working for everyone).

Which brings you back to a garden that you are so restricted from being able to do what you decided with....and how much that matters to you personally. It would matter one heck of a lot to me personally. It wouldnt matter at all to some people. Its down to where you fall on the spectrum personally - and I'm guessing it would be a "burden too far" with you possibly.

Of course - any sort of easement, I believe, will reduce the price one can command for a house. Basically - people very much prefer to have houses that no-one is stated as having "rights" over. I've no idea what the exact price differential would be with or without easement.

Before now - if I've looked at cheaper houses in my (expensive) Home Area and thought "I can actually afford that one...." the reason has sometimes boiled down to looking down the details and spotting it says a neighbour has rights over the land (eg shared back yard).

In my Current Area - if I spot a house that seems particularly cheap for the size/area/etc of house - then its sometimes down to it being one with no garden.

This house is somewhere in between in that sort of respect.

AdrianC

venna wrote: »

Our problems are now:

1 - the covenants are so restrictive we are not even allowed to plant ANY shrubs or put any type of 'temporary structure' on the area.

But you knew that before exchanging contracts, right...? If not, then your solicitor is at fault - because part of their job is making sure you're happy with things like this.

Was the solicitor "recommended" by the developer, by any chance?

But the developers have already planted shrubs on the easement (using incorrect plans) and assure us 'its OK because they are shallow rooted'.

Does the covenant say "None at all, ever, no chance, no way, no how. Don't even ask." or "None, unless the person benefitting from the covenant gives permission"?

venna

We have exchanged contracts on our current house (long back story) and agreed to complete 1st July. Our solicitor has been great (nothing to do with the developers) and emailed to warn us as soon as he saw the issue.


The covenant says (protected strip is the easement) "Without prejudice to the generality of the foregoing: (a) not to erect construct or place any building or other structure or erection or any work of any kind whether permanent or temporary on or over the Protected Strip ... (e) not to plant or cause or permit to be planted any trees or shrubs in the Protected Strip"


We understand this to mean a blanket ban on playhouses, raised beds, large planters, green house, shrubs (fine no trees, no argument) etc ...


If I have read this incorrectly I would be very happy to hear this. The developers are now making out I'm unreasonable saying they can't put the shrubs there are. Common sense agrees with them but the legal document we have to sign suggests we are not allowed to have them there. Please let me know if I'm wrong.

venna

Moneyis that is my long term concern. Even if I can work out a way to make the garden useable (maybe get a puppy and let it dug it up, nothing in covenant about that ) its the long term impact on re-sale potential ... even if we never have a sewer block/overflow/digging-up issue.

davidmcn

In practice it's more likely to mean that if you add these things it'll be at your own risk/cost in the event that it does need dug up (does it really take long to shift a playhouse?). It's not as if the sewer police are going to come round to inspect your garden and fine you for technical infringements. I would be concerned though about planting anything with roots liable to damage a pipe.