Restrictive covenants in title deed with out an actual copy of what they are. Pls adv

Bandia

Hello everyone, I am a newbie here. I need your advise on my urgent situation. I am a first time buyer. We are almost on the verge of exchanging contracts but after searches have been completed, we were told about covenants by our solicitors. Restrictive covenants in the title deeds by some people in 1928. These people sold the property to another person with some covenants but the land registry doesn't contain any evidence of what exactly the covenants are. I tried looking looking for the people's names who imposed the covenants on the house sale in 1928 and understood that they have died a few decades ago.

My solicitor is suggesting that we should go ahead with the sale of the vendors purchase an indemnity insurance for us. They opine that this might not a big risk going forward and that we can just buy the same insurance policy for buyers when we intend to sell the property. 1) Will the value of the property not be the same with restrictive covenants. 2) would it be difficult to sell this property ? There was another buyer whose offer was accepted on this property prior to me and he dropped out of sale just after the searches and it's my worry/belief that's he might have dropped out due to this reason. Pls advise whether I should go ahead with the purchase or not ?

tom9980

A dead person cannot enforce a restrictive covenant. I agree with your solicitor.

Davesnave

All sorts of covenants can be placed on property.

For example, in the title docs of my first house, there was a covenant forbidding giving access to the land immediately to the north, presumably to prevent development. As my house was one in a street built all at one time, it's reasonable to assume other properties shared that restriction, but by the time of my occupation, 80 years on, roads had been built and all that land to the north was developed. The covenant was totally irrelevant.

Your solicitor is saying that it's unlikely that anyone will now come forward to enforce the covenants, whatever they were, as people have been living in the property and there are no modern records of their application or enforcement. In Donald Rumsfeld's words they are a 'known unknown,' so they must be allowed for by way of indemnity insurance.

When people purchase a house, they take out insurance against catasrophic events without imagining that they will ever come to pass. This is similar, except that the event is unlikely to be catastrophic, and with each year that passes, less likely to happen. For that reason, I can't see it putting many people off.

AdrianC

tom9980 wrote: »

A dead person cannot enforce a restrictive covenant. I agree with your solicitor.

No, but the benefit of those covenants may have been sold to somebody else before their death, or may have been inherited by their heirs.

Or it may not.

It's not been an issue for the last 88 years, so do you feel lucky? If you don't, then an indemnity policy will cover the costs of the beneficiaries popping up waving paperwork.

It's one of the few times an indemnity policy may be worth the money.

Land_Registry

Covenants attach to the land and not to the individuals involved. As such they are not inherited and they don't cease when the original parties have passed away.

Indemnity policies tend to be the way many solicitors will now go and in part that is perhaps because it is a cheaper option as they know any efforts to trace the deed/details can be time-consuming and costly and with no guarantee of success

Bandia

solicitors suggest that the covenants could be inherited by children but that the likelihood of even suing us could be difficult for them as the land registry doesn't hold the document that contains the list of restrictive covenants. The title deeds says some covenants have been imposed but nobody including land registry don't know what they are. Even if the descendants have an original copy of the document, as the land registry hasn't provided us any evidence I presume I should be risk free. I am intending to go forward with out asking for a discount of the price agreed and just do with the insurance policy. Hope it will be fine. Many thanks for responses.

AdrianC

Bandia wrote: »

solicitors suggest that the covenants could be inherited by children but that the likelihood of even suing us could be difficult for them as the land registry doesn't hold the document that contains the list of restrictive covenants. The title deeds says some covenants have been imposed but nobody including land registry don't know what they are. Even if the descendants have an original copy of the document, as the land registry hasn't provided us any evidence I presume I should be risk free.

No. All that the LR not having a copy tells you is that the LR don't have a copy, because it wasn't available to be lodged as part of the first registration of the property after the LR was set up. That doesn't mean it can't possibly exist somewhere.

Land_Registry

And inheritance only clicks in if they inherited the whole of the benefiting land and still own it.
However in my experience the route you have chosen is the right one re indemnity against any identified risks - saves time and money and hopefully never has to be used

deFoix

How would that work in a court of law if somebody out of nowhere tried to enforce covenants whipped out of nowhere on a pice of paper hat nobody has seen in decades?

Surely if the restrictive covenants applied on the land are not 'registered' somewhere or not even reasonably accessible/available than how could they be enforced?

cannyshopper_2

there are covenants on my house saying, amongst other things, that
(a) I can't run a business from my home (other than as a registered office for administration purposes only);
(b) I can't keep any animals other than domestic pets.
I don't really want to keep pigs (though a goat might help keep the garden in check)

There is also one that forbids the erection of any hedge, fence, wall or other permanent structure at the front of the property. This is on an estate of houses built late 1960's/early 1970's that was supposed to be "open plan". Most houses have ignored this and no-one seems to care.

davidmcn

Boler1985 wrote: »

Surely if the restrictive covenants applied on the land are not 'registered' somewhere or not even reasonably accessible/available than how could they be enforced?

They're reasonably accessible/available if you (or your predecessors) haven't been careless enough to lose your title deeds.