Restrictive covenant pre 1925

Gareth_B

We have a restrictive covenant on a parcel of our land in our garden that prohibits more than 1 property being built. We are looking to apply for planning permission for 3 properties which technically is possible but we are concerned by this covenant.

We can get an indemnity policy that will cover us (£1000) but the simple advice is to ask the land registry to remove the covenant, however if we do so then we can never get the indemnity policy as it cannot be taken out when a removal request has been made.

I have 2 questions.

i)The covenant is pre 1925 and it refers to permission to build being required from the covantee in writing for 1 dwelling. There is nothing I can see that states the benefit to the covantee passes to his heirs or assigns so would this mean that the covenant is unenforceable? He died in 1939 and as far as I can tell there may only be a few descendants alive (ancestry.co.uk)

ii)Can a neighbour who has no benefit to the covenant try to enforce any action of the covenant in any form at all, if so is the indemnity policy the safest route?

Thanks in advance for any advice

GB

Grey_Critic

You need the agreement of the decendents - but you also need a solicitor. Covenants can be an expensive minefield as some people have found out to their cost when trying to get around them. What was the reason for the restriction on building?

Gareth_B

Grey_Critic wrote: »

You need the agreement of the decendents - but you also need a solicitor. Covenants can be an expensive minefield as some people have found out to their cost when trying to get around them. What was the reason for the restriction on building?

"the object of such approval being to preserve the general character of XXX as a residential building estate"

The character has changed substantially since the covenant over 100 years ago. I agree with legal advice but sometimes you can hit on something on a forum like this that helps ease your mind - or maybe worsens it

I think the main thrust of my question is whether it is enforceable as there is no specific reference to the beneficiaries needing to approve, just a direct reference to the covantee, which as I understand, beneficiaries are implied after 1925 but need to be stated pre this time?

G_M

Define 'coventantee' in this context?


Quote the full wording of the covenant, together with its context (in a Conveyance? A Deed? The registered Title? Elsewhere??

Gareth_B

G_M wrote: »

Define 'coventantee' in this context?


Quote the full wording of the covenant, together with its context (in a Conveyance? A Deed? The registered Title? Elsewhere??

The covantee, George Hamilton was the vendor who sold the land to the occupier of the time, John Smith This extended the original garden

"COVENANTS by the said John Smith with the said George Hamilton
That he and his heirs and assigns would not erect on the said plot of
land any building save a private dwellinghouse and should be in accordance with plans to be submitted to andapproved of by the said George Hamilton (the object of such approval being
to preserve the general character of XXX as a residential estate)"

This is in the registered title. There is nothing further in the deed that states George Hamilton's benefit passes to his heirs or assigns, and as this is pre 1926 gives me hope that it can't automatically pass to his descendants which it would post 1926, or have I got this wrong?

EachPenny

Gareth_B wrote: »

We have a restrictive covenant on a parcel of our land in our garden that prohibits more than 1 property being built. We are looking to apply for planning permission for 3 properties which technically is possible but we are concerned by this covenant.

Before getting too bogged down with the covenant, have you approached the local planning authority to discuss the possibility of planning consent, or is the technical possibility just that the land is large enough to fit 3 properties on it?

If there was a covenant seeking to "preserve the general character..." this may have subsequently led to the local authority adopting planning policies for the area that do the same thing on a statutory basis.

Also, have you spoken to the neighbours to seek their views?

Gareth_B

EachPenny wrote: »

Before getting too bogged down with the covenant, have you approached the local planning authority to discuss the possibility of planning consent, or is the technical possibility just that the land is large enough to fit 3 properties on it?

If there was a covenant seeking to "preserve the general character..." this may have subsequently led to the local authority adopting planning policies for the area that do the same thing on a statutory basis.

Also, have you spoken to the neighbours to seek their views?

Pre planning has thrown no spanners in the works, they are satisfied it will meet local policy.

I believe that speaking to people can prevent many issues, so I approached all immediate neighbours and most were fine and pleased I started the dialogue, other than one who said they would find any means to stop us...... hence the question before it goes too far down the line

stator

You are right, its extremely unlikely that anyone will complain or try to enforce the covenant, but whoever buys these extra houses will want a covenant, so you might as well just buy one and save yourself the extra hassle.
Unless you were planning on renting the houses out or something, in which case it's your own risk you are taking. But if you are going to sell them, you want the covenant.

Gareth_B

stator wrote: »

You are right, its extremely unlikely that anyone will complain or try to enforce the covenant, but whoever buys these extra houses will want a covenant, so you might as well just buy one and save yourself the extra hassle.
Unless you were planning on renting the houses out or something, in which case it's your own risk you are taking. But if you are going to sell them, you want the covenant.

If someone will "do whatever it takes" though, can they as a 3rd party take out any enforcement action? Are you saying the indemnity insurance (which is in perpetuity) is the best way forward?

EachPenny

Gareth_B wrote: »

If someone will "do whatever it takes" though, can they as a 3rd party take out any enforcement action? Are you saying the indemnity insurance (which is in perpetuity) is the best way forward?

That was the reason for my question. You'd have one level of risk if there was little chance of any heirs (if applicable) ever finding out about it, and a much higher level of risk if a neighbour will devote hours scour the surface of the Earth to find someone able to scupper your plans.

The same can apply to the planning advice. Pre-application advice carries no significant weight, and if a neighbour is sufficiently motivated it is not unknown for one or two residents to sway the planning officer's views when a full application is made. It might be unlikely that they would be able to stop any form of (re)development of the site but the sticking point you will probably have will be on density and overdevelopment.

Even if they are not directly affected, other residents in the 'estate' might come out of the woodwork objecting on the basis that your plans change the essential character of the area (people will be thinking if you get away with it then perhaps their neighbour will try too).

But by the sound of it, resolving the question of the covenant is going to be the main/first thing to worry about.

Gareth_B

EachPenny wrote: »

That was the reason for my question. You'd have one level of risk if there was little chance of any heirs (if applicable) ever finding out about it, and a much higher level of risk if a neighbour will devote hours scour the surface of the Earth to find someone able to scupper your plans.

The same can apply to the planning advice. Pre-application advice carries no significant weight, and if a neighbour is sufficiently motivated it is not unknown for one or two residents to sway the planning officer's views when a full application is made. It might be unlikely that they would be able to stop any form of (re)development of the site but the sticking point you will probably have will be on density and overdevelopment.

Even if they are not directly affected, other residents in the 'estate' might come out of the woodwork objecting on the basis that your plans change the essential character of the area (people will be thinking if you get away with it then perhaps their neighbour will try too).

But by the sound of it, resolving the question of the covenant is going to be the main/first thing to worry about.

It's seeming that for peace of mind, the indemnity is the way to go as the policy we can get specifically insures us against the particular covenant ( and an earlier one that has no relevance to what we are going to do)

Regarding the planning element, we have been fairly robust with the pre app and the whole area has had its character changed, ironically, the main protagonist is living a house that was built on an adjoining garden 40 years ago, originally owned by the same person that placed the covenant on our home, though completely dissociated from ours