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Urgently need help with a covenant
MilesCollin1
Posts: 2 Newbie
Hi guys,
I am interested in purchasing a plot of land at auction on Monday afternoon 26/3/18. I am aware this is very short notice to obtain legal advice, any help would be appreciated immensely.
The plot I am seeking to purchase is an in-fill plot that is incorporating the garage of next door #28, their front drive and half of their back garden. A rectangular plot totalling 330m2.
I have obtained the title deeds of #28 which make reference to a restrictive covenant which can be viewed in full on the deeds of #26 (the semi adjoining #28).
Having looked at the covenant it makes reference to only one dwelling or dwellinghouses to be erected per plot. As far as I am aware number 12 have managed to build an infill development on their land beside their house and their title deed makes no reference to the same restrictive covenant, although it was originally part of the same estate and sold by the same vendor.
The covenant on the land is as follows:
Schedule of restrictive covenants
1 The following are details of the covenants contained in the Conveyance
dated 12 October 1906 referred to in the Charges Register:-
AND the Purchaser hereby covenants with the said Oscar Wilson Moorsom-
Roberts (acting by the said Henry Roger Crompton-Roberts as aforesaid)
his heirs and assigns as owner or owners for the time being of the
remainder of the said Hooley House Estate that the Purchaser his heirs
and assigns will henceforth observe and perform all the said
stipulations and conditions set out in the first Schedule hereto.
THE FIRST SCHEDULE above referred to
1. Not to erect on the plots hereinbefore described (hereinafter
referred to as the said plots) any building or erection nearer to the
road in front thereof or to any proposed road than the building line
shown on the said plan.
2. Forthwith on being called upon by the said Oscar Wilson Moorsom
2 of 4
Schedule of restrictive covenants continued
Roberts (hereinafter called the Vendor) to make and ever afterwards
maintain in good repair at the front and rear of the said plots and on
the side thereof indicated by the mark T on the plan a substantial
split lapped oak pale fence not less than 5 feet nor more than 6 feet 6
inches in height. The fence next a road shall not exceed 4 feet in
height nor shall it be constructed or used as an advertising station or
so as to be a nuisance or injury to the owners or occupiers of the
adjoining property. The Purchaser of two or more contiguous plots
shall not be bound under this stipulation to fence them off from each
other.
3. Not to hold or suffer to be held a Fair or Show of any description
or burn bricks or tiles on any plot and not to do or allow thereon any
act or thing which shall be a nuisance annoyance disturbance damage or
injury to the Vendor or the owners or occupiers of the adjoining
property or the neighbourhood.
4. All the said plots shall be used and occupied for the erection of a
private dwelling-house or private dwelling-houses only and for gardens
or pleasure grounds attached thereto as hereinafter mentioned. The
houses to be erected on each or any plot or plots shall be erected in a
position and according to plans and specifications to be approved by
the Surveyor for the time being of the Vendor (hereinafter referred to
as "the said Surveyor") before any building operations are commenced
and carried out to his satisfaction and not more than one house shall
be erected on each plot and no house shall be erected on land having a
frontage of less than 40 feet. The said Surveyor shall be paid by each
Purchaser a fee of £1.1.0. for approving each set of plans and
specifications.
5. The houses to be erected on the said plots shall not be of less
value in first cost of labour and materials exclusive of outbuildings
at the lowest current prices than £400 each in case of a detached
house and £750 in case of a pair of semi-detached houses.
6. No bricks timber or materials of any kind nor any rubbish shall be
deposited upon any road or footpath nor any obstruction caused to the
free use of the raods or footpaths on the Hooley House Estate and no
earth or gravel shall be dug out or removed other than such as may be
required to be dug out or removed for foundations and for forming
basement storeys (if any) cellars drains ways or paths for or to any
dwelling-house erected on the said plots or for laying out the garden.
No timber or timber like trees or pollards shall be cut down or removed
from the said plots (without the previous consent of the Vendor) except
such as it shall be necessary to cut down or remove for the purpose of
building houses on the said plots in accordance with these stipulations
and the necessary outbuildings thereto. The Purchaser will protect the
said trees and pollards from injury or damage and will not do or suffer
to be done any act or thing which may injure or damage the same.
7. The Purchaser shall from time to time contribute and pay a rateable
proportion of the expense of repairing and maintaining the footway as
also the costs of repairing and maintaining so much of the roadway as
abuts on the said plots until the same shall be taken over by the
proper local authority the proportion of such expenses respectively to
be paid by the Purchaser to be determined by the said Surveyor and to
be recoverable by action or by distress on the said plots. All plots
shown on the said plan are sold subject to the reservation to the
Vendor of the free running of water and soil through and over such
plots from the adjoining lands of the Vendor. The Purchaser shall not
without the previous consent in writing of the Vendor use or cause or
suffer to be used any road on the Hooley House Estate for carting
building or other similar materials or for heavy traffic except when
the road is dry and on condition that all damage to any such road or
any footpath adjoining thereto or to any other part of the estate
occasioned by any such user shall be made good by the Purchaser and in
the event of his failing to make good any such damage after written
notice from the Vendor requiring him so to do the Vendor shall be
entitled to make good the same to recover the cost thereof from the
Purchaser.
8. No trade or business whatsoever to be carried on or permitted or
suffered to be carried on upon any of the said plots or in or upon any
Title number SY302608
3 of 4
Schedule of restrictive covenants continued
building thereon and no plot or building thereon is to be used for a
hospital asylum public institution or advertising station nor otherwise
than as a private residence.
9. No part of the said plots shall at any time hereafter be formed or
used as a way or portion of a way from any other estate to any way
already or hereafter to be made or laid out by the Vendor his heirs or
assigns on the Hooley House Estate without his or their consent in
writing first obtained.
2 The following are details of the covenants contained in the Conveyance
dated 19 May 1920 referred to in the Charges Register:-
"AND the Purchaser for herself her heirs and assigns hereby covenants
with the Vendor his heirs and assigns that she the Purchaser will not
erect or building any erection or building upon the said land at the
north side of the said messuage or dwellinghouse except a garage stable
or other outbuilding in connection with the said messuage or
dwellinghouse.
End of register
Title number SY302608
Would this covenant be enforceable to prevent an infill development at the side of #28 (which shares the same covenant as #26). It is my understanding that the neighbours may be able to enforce the covenants as they are the beneficiaries in this case?
Is it possible to obtain planning and then take out an indemnity insurance against the covenant being enforced?
How likely is it that such an insurance would be written given that the neighbours both sides, have copies of the same covenant on their deeds and therefore are likely to be aware of its existence?
Thanks so much in advance.....:j
I am interested in purchasing a plot of land at auction on Monday afternoon 26/3/18. I am aware this is very short notice to obtain legal advice, any help would be appreciated immensely.
The plot I am seeking to purchase is an in-fill plot that is incorporating the garage of next door #28, their front drive and half of their back garden. A rectangular plot totalling 330m2.
I have obtained the title deeds of #28 which make reference to a restrictive covenant which can be viewed in full on the deeds of #26 (the semi adjoining #28).
Having looked at the covenant it makes reference to only one dwelling or dwellinghouses to be erected per plot. As far as I am aware number 12 have managed to build an infill development on their land beside their house and their title deed makes no reference to the same restrictive covenant, although it was originally part of the same estate and sold by the same vendor.
The covenant on the land is as follows:
Schedule of restrictive covenants
1 The following are details of the covenants contained in the Conveyance
dated 12 October 1906 referred to in the Charges Register:-
AND the Purchaser hereby covenants with the said Oscar Wilson Moorsom-
Roberts (acting by the said Henry Roger Crompton-Roberts as aforesaid)
his heirs and assigns as owner or owners for the time being of the
remainder of the said Hooley House Estate that the Purchaser his heirs
and assigns will henceforth observe and perform all the said
stipulations and conditions set out in the first Schedule hereto.
THE FIRST SCHEDULE above referred to
1. Not to erect on the plots hereinbefore described (hereinafter
referred to as the said plots) any building or erection nearer to the
road in front thereof or to any proposed road than the building line
shown on the said plan.
2. Forthwith on being called upon by the said Oscar Wilson Moorsom
2 of 4
Schedule of restrictive covenants continued
Roberts (hereinafter called the Vendor) to make and ever afterwards
maintain in good repair at the front and rear of the said plots and on
the side thereof indicated by the mark T on the plan a substantial
split lapped oak pale fence not less than 5 feet nor more than 6 feet 6
inches in height. The fence next a road shall not exceed 4 feet in
height nor shall it be constructed or used as an advertising station or
so as to be a nuisance or injury to the owners or occupiers of the
adjoining property. The Purchaser of two or more contiguous plots
shall not be bound under this stipulation to fence them off from each
other.
3. Not to hold or suffer to be held a Fair or Show of any description
or burn bricks or tiles on any plot and not to do or allow thereon any
act or thing which shall be a nuisance annoyance disturbance damage or
injury to the Vendor or the owners or occupiers of the adjoining
property or the neighbourhood.
4. All the said plots shall be used and occupied for the erection of a
private dwelling-house or private dwelling-houses only and for gardens
or pleasure grounds attached thereto as hereinafter mentioned. The
houses to be erected on each or any plot or plots shall be erected in a
position and according to plans and specifications to be approved by
the Surveyor for the time being of the Vendor (hereinafter referred to
as "the said Surveyor") before any building operations are commenced
and carried out to his satisfaction and not more than one house shall
be erected on each plot and no house shall be erected on land having a
frontage of less than 40 feet. The said Surveyor shall be paid by each
Purchaser a fee of £1.1.0. for approving each set of plans and
specifications.
5. The houses to be erected on the said plots shall not be of less
value in first cost of labour and materials exclusive of outbuildings
at the lowest current prices than £400 each in case of a detached
house and £750 in case of a pair of semi-detached houses.
6. No bricks timber or materials of any kind nor any rubbish shall be
deposited upon any road or footpath nor any obstruction caused to the
free use of the raods or footpaths on the Hooley House Estate and no
earth or gravel shall be dug out or removed other than such as may be
required to be dug out or removed for foundations and for forming
basement storeys (if any) cellars drains ways or paths for or to any
dwelling-house erected on the said plots or for laying out the garden.
No timber or timber like trees or pollards shall be cut down or removed
from the said plots (without the previous consent of the Vendor) except
such as it shall be necessary to cut down or remove for the purpose of
building houses on the said plots in accordance with these stipulations
and the necessary outbuildings thereto. The Purchaser will protect the
said trees and pollards from injury or damage and will not do or suffer
to be done any act or thing which may injure or damage the same.
7. The Purchaser shall from time to time contribute and pay a rateable
proportion of the expense of repairing and maintaining the footway as
also the costs of repairing and maintaining so much of the roadway as
abuts on the said plots until the same shall be taken over by the
proper local authority the proportion of such expenses respectively to
be paid by the Purchaser to be determined by the said Surveyor and to
be recoverable by action or by distress on the said plots. All plots
shown on the said plan are sold subject to the reservation to the
Vendor of the free running of water and soil through and over such
plots from the adjoining lands of the Vendor. The Purchaser shall not
without the previous consent in writing of the Vendor use or cause or
suffer to be used any road on the Hooley House Estate for carting
building or other similar materials or for heavy traffic except when
the road is dry and on condition that all damage to any such road or
any footpath adjoining thereto or to any other part of the estate
occasioned by any such user shall be made good by the Purchaser and in
the event of his failing to make good any such damage after written
notice from the Vendor requiring him so to do the Vendor shall be
entitled to make good the same to recover the cost thereof from the
Purchaser.
8. No trade or business whatsoever to be carried on or permitted or
suffered to be carried on upon any of the said plots or in or upon any
Title number SY302608
3 of 4
Schedule of restrictive covenants continued
building thereon and no plot or building thereon is to be used for a
hospital asylum public institution or advertising station nor otherwise
than as a private residence.
9. No part of the said plots shall at any time hereafter be formed or
used as a way or portion of a way from any other estate to any way
already or hereafter to be made or laid out by the Vendor his heirs or
assigns on the Hooley House Estate without his or their consent in
writing first obtained.
2 The following are details of the covenants contained in the Conveyance
dated 19 May 1920 referred to in the Charges Register:-
"AND the Purchaser for herself her heirs and assigns hereby covenants
with the Vendor his heirs and assigns that she the Purchaser will not
erect or building any erection or building upon the said land at the
north side of the said messuage or dwellinghouse except a garage stable
or other outbuilding in connection with the said messuage or
dwellinghouse.
End of register
Title number SY302608
Would this covenant be enforceable to prevent an infill development at the side of #28 (which shares the same covenant as #26). It is my understanding that the neighbours may be able to enforce the covenants as they are the beneficiaries in this case?
Is it possible to obtain planning and then take out an indemnity insurance against the covenant being enforced?
How likely is it that such an insurance would be written given that the neighbours both sides, have copies of the same covenant on their deeds and therefore are likely to be aware of its existence?
Thanks so much in advance.....:j
0
Comments
-
so you are going to base the real life decision whether to buy a plot at auction in 48 hours time based on expecting actual, reliable and comprehensive LEGAL advice from an internet forum
REALLY???0 -
Insurance isn't straightforward for development which hasn't taken place yet - obviously less of a risk if something has already been there for years without objection. I haven't looked at the covenant or fully understood what you're proposing to do though.0
-
[FONT=Verdana, sans-serif]I very much doubt you be able to obtain indemnity insurance.[/FONT]
[FONT=Verdana, sans-serif]Has planning permission already been granted for this plot?[/FONT]
[FONT=Verdana, sans-serif]You are very much taking a risk and trying to defeat an infill next door to them by objecting to planning applications and trying to enforce a restrictive covenant is just the sort of thing an aggrieved neighbour will do.[/FONT]0 -
We have a similar covenant and we have planning permission to build a house.
You can buy indemnity insurance. I think ours stipulates that we do need to live in the house for 12 months or something. I can't remember. We bought it when we bought the house 6 years ago.
The only entity that can enforce the covenant is the original owner of the land, his heirs and assigns. That's not your neighbours.
You do need a solicitor, fast.Everything that is supposed to be in heaven is already here on earth.
0 -
Thanks so much for your reply, I am in the process of obtaining a definitive yes or no from the solicitor..... I was looking for similar cases in the meantime.
It is my understanding that you have obtained planning and now an indemnity insurance against the neighbour invoking the covenant and preventing the new build infill home?
As a rough guide how much was the insurance?
You mentioned living in the house for a year, would this be the newly completed one once it is built?
Thanks so much..0 -
Does this mean there is no existing planning consent to develop the plot?MilesCollin1 wrote: »Is it possible to obtain planning and then take out an indemnity insurance against the covenant being enforced?
Normally I would expect the owners of #28 to have applied for at least outline planning consent to develop the plot before offering it for sale. That would give the purchaser some assurance that they could develop the land, and also limit the extent to which the owner of #28 could object to the subsequent full application.
The outline consent would increase the value of the land, so it would be slightly foolish of a landowner to sell land at a lower value without consent, rather than spending the modest sum obtaining outline consent and getting a very high rate of return on this expenditure.
Have you checked the local council's website to see what the planning history of this plot, and also of the development at #12. Although past planning decisions don't set a precedent for future approvals, if you discover that #12 only got consent after a long battle and multiple appeals then you will have a better idea what you might be up against.
Frankly, if #28 have not obtained outline consent (at least) then I would rapidly lose interest in this plot. Once sold, there is nothing stopping them objecting to anything being built on the land. You should also bear in mind the council may not consent to #28 losing their garage and a significant part of their garden."In the future, everyone will be rich for 15 minutes"0 -
[FONT=Verdana, sans-serif]Does it have planning permission?[/FONT]
[FONT=Verdana, sans-serif]If not you are taking a hell of a risk and anything you pay is purely hope value.[/FONT]
[FONT=Verdana, sans-serif]As above I can't see why the plot is being sold, as is, without at least trying for permission.[/FONT]0 -
MilesCollin1 wrote: »Thanks so much for your reply, I am in the process of obtaining a definitive yes or no from the solicitor..... I was looking for similar cases in the meantime.
It is my understanding that you have obtained planning and now an indemnity insurance against the neighbour invoking the covenant and preventing the new build infill home?
As a rough guide how much was the insurance?
You mentioned living in the house for a year, would this be the newly completed one once it is built?
Thanks so much..
Yes, live in the new house for at least a year before selling, I think.
Something in my head says £2,000 but I cannot for the life of me remember. It was all lumped in with the purchase and the sale of our old house so there were much bigger numbers involved.
I could have made this all up, other than I know we have indemnity specifically for the new house breaching a covenant.
As I said, it isn't to cover against the neighbours invoking it. The neighbours can't. They don't own the covenant, it was owned by whoever sold the plot to the original house in 1938 and their descendents.Everything that is supposed to be in heaven is already here on earth.
0 -
MilesCollin1 - please confirm what happened / what advice you were given? We are in a similar situation. Thanks!0
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