I have Broken a Covenant

lincroft1710

jansus wrote: »

Thank you the covenant states " not to erect or place any additional building or erection or structure gate post wall fence hedge or any other partition on the property except in accordance with plans and specifications previously approved in writing by he transferor"

So i'm wondering if partition is the key word?

Two points come to mind

1. Are the conditions of this covenant fair and reasonable, as surely a covenant is a form of contract.

2. If the "transferor" is MSE Borough Council, and not MSE BC Housing Dept, then if the planning dept or planning committee of MSE BC approved the plans then MSE BC has approved the plans, because the planning dept/committee acts on their behalf.

I am aware of previous views on Point 2.

davidmcn

lincroft1710 wrote: »

Two points come to mind

1. Are the conditions of this covenant fair and reasonable, as surely a covenant is a form of contract.

2. If the "transferor" is MSE Borough Council, and not MSE BC Housing Dept, then if the planning dept or planning committee of MSE BC approved the plans then MSE BC has approved the plans, because the planning dept/committee acts on their behalf.

I am aware of previous views on Point 2.

1. Doesn't matter whether they're objectively fair and reasonable, the contract was entered into some time ago by parties who (almost certainly) each had independent legal advice.

2. You're incorrect on this point - this is why councils frequently remind you that e.g. planning permission doesnt absolve you of the need to get building regulations consent.

lincroft1710

davidmcn wrote: »

1. Doesn't matter whether they're objectively fair and reasonable, the contract was entered into some time ago by parties who (almost certainly) each had independent legal advice.

2. You're incorrect on this point - this is why councils frequently remind you that e.g. planning permission doesnt absolve you of the need to get building regulations consent.

1. I was probably thinking in terms of consumer rights and unfair contracts.

2. I think your analogy is unsound. PP and BR are 2 separate requirements, there is no precedent that approval of one absolves the need for the other. In OP's case it is approval of the plans by the transferor who happens to be the council.

I have seen many transfer documents of council properties, and it is usually always "MSE Borough Council" as an entity, not "MSE BC Housing Dept".

So if one council department makes a decision is it on behalf of that department or on behalf of the council as a single entity.

jansus

davidmcn wrote: »

1. Doesn't matter whether they're objectively fair and reasonable, the contract was entered into some time ago by parties who (almost certainly) each had independent legal advice.

2. You're incorrect on this point - this is why councils frequently remind you that e.g. planning permission doesnt absolve you of the need to get building regulations consent.

My paper work says i have planning and building regulation approval, its consent from the transferor that i didn't get.

davidmcn

lincroft1710 wrote: »

1. I was probably thinking in terms of consumer rights and unfair contracts.

Well, they don't apply in this scenario.

if one council department makes a decision is it on behalf of that department or on behalf of the council as a single entity.

Planning decisions are made by the council acting purely as the planning authority. Nothing to do with any rights which the council might have as a landlord.

lincroft1710

davidmcn wrote: »

Planning decisions are made by the council acting purely as the planning authority. Nothing to do with any rights which the council might have as a landlord.

The council are not the landlord, they are a previous owner. The council is an entity. Unless the covenant says something to the contrary, it says simply that any alteration must be approved by the transferor, which is the council, an entity, not a landlord, not the housing dept. If the planning dept approve the plans then the council has approved them.

It is all down to interpretation, there have been many lengthy and costly court cases about interpretation

davidmcn

lincroft1710 wrote: »

The council are not the landlord, they are a previous owner.

They are (presumably) the landlord of the property which benefits from the covenant i.e. the residue of the estate from which the property was split off.

It is all down to interpretation, there have been many lengthy and costly court cases about interpretation

And can you cite any which support your view that a planning decision implies the council is consenting in a different capacity? Because it's not something I've heard of before, and obviously neither have the solicitors involved in the OP's transaction.

lincroft1710

davidmcn wrote: »

And can you cite any which support your view that a planning decision implies the council is consenting in a different capacity? Because it's not something I've heard of before, and obviously neither have the solicitors involved in the OP's transaction.

In this case the wording of the covenant is critical as is the status of the transferor. Bear in mind that a covenant is in effect a term or condition, it is not backed up by specific legislation other than that which permits or does not legislate against it.