Restrictive covenant pre 1925

da_rule

Indemnity would be my choice. It’s probably the quickest and overall cheapest route to take.

Because the wording of the covenant there is a potential argument that the covenant was written so as to benefit the land of the estate not just the person named. Therefore it may be enforceable by others within the estate. It’s certainly ambiguous enough that the Land Registry probably wouldn’t just remove it. That would mean you’d then end up in the tribunal trying to get them to remove it.

I’d just get the indemnity and then go to planning. Don’t apply for planning before you get the policy though, as planning applications are public, it could therefore be seen as putting benefiting parties on notice and invalidate the policy. There is also, generally, clauses in these types of insurance policies that you can’t do anything after the policy that would put the beneficiaries on notice, make sure that the policy you are getting allowsyou to make planning applications etc.

stator

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?

No, only the person who has the benefit can enforce the covenant.

But when you come to sell the house, any potential buyers are unlikely to care how likely it is that the covenant will be enforced, as long as there is a tiny chance they will want the indemnity.

Gareth_B

stator wrote: »

No, only the person who has the benefit can enforce the covenant.

But when you come to sell the house, any potential buyers are unlikely to care how likely it is that the covenant will be enforced, as long as there is a tiny chance they will want the indemnity.

Thank you. My main concern would be that a neighbour would try and claim the benefit as a 3rd party. If only the person who has the benefit then that eases my mind somewhat.

As the cleanest method would be to get them removed, I was trying to ascertain whether the wording in the covenant, because it did not explicitly say the benefit would pass to George Hamilton's heirs and assigns and was pre 1926 then it was obsolete. From what I have read, since 1926 it is automatically implied.

In terms of protecting the character of the area, it has changed beyond all recognition since 1918 and every large garden has been developed, our is the last one, so I believe we would be able to argue this...... but at what cost/

Think I'll get the indemnity

Gareth_B

da_rule wrote: »

Indemnity would be my choice. It’s probably the quickest and overall cheapest route to take.

Because the wording of the covenant there is a potential argument that the covenant was written so as to benefit the land of the estate not just the person named. Therefore it may be enforceable by others within the estate. It’s certainly ambiguous enough that the Land Registry probably wouldn’t just remove it. That would mean you’d then end up in the tribunal trying to get them to remove it.

I’d just get the indemnity and then go to planning. Don’t apply for planning before you get the policy though, as planning applications are public, it could therefore be seen as putting benefiting parties on notice and invalidate the policy. There is also, generally, clauses in these types of insurance policies that you can’t do anything after the policy that would put the beneficiaries on notice, make sure that the policy you are getting allows you to make planning applications etc.

Thank you. I'm thinking it is the safest way. The policies I have investigated all give me cover pre approval and do state we cannot divulge we have it, however they list the planning app number. I need to confirm that if the application failed planning and we re-submitted under a different application number we would still be covered.

Thanks again