Buying a property with a missing restrictive covenant

RemotecUK

I am in the process of buying a property which has a missing restrictive covenant and would like some advice on the best way to proceed.

The text on the title reads:

A deed poll dated [redacted but circa 150 years ago] made between [redacted] and various other persons contains restrictive covenants but neither the original deed nor a certified copy or examined abstract thereof was produced on first registration.

Firstly I have been trying to piece together what this means.

From reading another of other posts on this matter, I believe this means the following:

This property was built before there was a centralised, or computerised version of the land registry. At some point someone decided to register this property with the registry which is "first registration". At that point in time, someone had a bundle of paper documents and submitted them to the land registry to register the property. Does that sound correct?

The first thing I don't understand is how, if this covenant was not originally submitted, can it be missing? There must of been some evidence of it for it to be noted as missing.

Does this meant that someone somewhere has a piece of paper that contains a restrictive covenant and they could at some point persuade a court that it is a valid document and that due to an action I have taken e.g. decided to keep pigs in the garden enforce the covenant?

In this case who "owns" the covenant? Is it attached to the land or to an individual?

If it is attached to the land could anyone attempt to enforce it? Would they be able to claim damages even if say they lived 100 miles away and had never been affected by my pigs? Could multiple people attempt to enforce the covenant meaning there are effectively unlimited liabilities? Do losses have to be proven as in contract law when claiming for damages?

If it is attached to an individual what type of claim could they make? Is there a limit of liability? Again would they have to prove that my breach of the covenant has affected them in some way?

The situation at present is that the vendor will not provide insurance for this unknown and unquantifiable risk and we do not know if we should proceed with the purchase.

I don't really understand how a claim could come about and what the limit of our liability would be if we did breach the covenant.

I have done some investigation by looking at the titles for neighbouring properties. One of the neighbours has a restrictive covenant dated at exactly the same date, mentioning the term "deed poll" and listing the same names. I guess it is reasonable to assume that this is the same restriction. But of course I cannot be certain.

The point of insurance in this case is to insure against an unknown risk. If we can be reasonably satisfied that next doors restriction is the same and my solicitor can decipher the text to find there is minimal risk do we need indemnification?

Sorry there are a lot of questions here but I am not a legal expert and would like to fully understand for myself what all of this means.

Thanks in advance.

davidmcn

RemotecUK wrote: »

Sorry there are a lot of questions here but I am not a legal expert and would like to fully understand for myself what all of this means.

That's why you're employing a solicitor - aren't they able to advise you?

DanG85

Any idea what the restrictive covenant is regarding in terms of what it is restricting on the land?

If there is one it will be attached to land and can be binding on subsequent buyers. If it is dated before 1925 (Land Charges Act) then it does not need to be registered for it to be binding, however, it still must be communicated to the buyer clearly under the doctrine of notice. If no notice of the actual covenant is given and it is not registered as a land charge, then it should not be binding on subsequent buyers.

A solicitor will turn up any such covenants on their searches and should be able to advise better, however, I would doubt someone would be able to enforce such a covenant if there is not detail as to what it actually restricts, and the buyer would subsequently be unaware of it because of this.

AdrianC

RemotecUK wrote: »

This property was built before there was a centralised, or computerised version of the land registry.

Over a hundred years before...

At some point someone decided to register this property with the registry which is "first registration".

Yep, almost certainly on a sale within the last 30 years.

At that point in time, someone had a bundle of paper documents and submitted them to the land registry to register the property. Does that sound correct?

Absolutely.

The first thing I don't understand is how, if this covenant was not originally submitted, can it be missing? There must of been some evidence of it for it to be noted as missing.

It'll be referred to in some of the paperwork that hadn't gone missing over the 120 years and however many owners between the original deed and being registered with the LR.

Does this meant that someone somewhere has a piece of paper that contains a restrictive covenant and they could at some point persuade a court that it is a valid document and that due to an action I have taken e.g. decided to keep pigs in the garden enforce the covenant?

It's not impossible.

I leave it to you to determine the likelihood.

In this case who "owns" the covenant? Is it attached to the land or to an individual?

It'll say in the covenant...

If it is attached to the land could anyone attempt to enforce it?

Anyone? No. But if they can prove they're the beneficiary of it, yes.

Would they be able to claim damages even if say they lived 100 miles away and had never been affected by my pigs?

If that's what the covenant says, and you breached it, yes.

I have done some investigation by looking at the titles for neighbouring properties. One of the neighbours has a restrictive covenant dated at exactly the same date, mentioning the term "deed poll" and listing the same names. I guess it is reasonable to assume that this is the same restriction. But of course I cannot be certain.

That would seem to be a very good guess. Does his registration contain details of the covenant and the beneficiaries? Or has it gone awol over the last century and a half, too?

If we can be reasonably satisfied that next doors restriction is the same and my solicitor can decipher the text to find there is minimal risk do we need indemnification?

Only you can decide if you need an indemnity policy, whether it'll make you feel any happier, and whether it's an actual viable risk. Or whether a UFO abducting your pig is probably more likely.

We have a similar situation with part of our plot - there's a corner which is shaded on the map, subject to unknown covenants. That corner was clearly a separate dwelling at some stage, and there's a ruined wall or two lurking. Gawd knows what the covenants are or who might benefit from them. I can't say I lose much sleep over it... But I don't keep pigs. <thinks> It'd probably be a good place to keep 'em, though, if I did.

But look on the bright side - if somebody DOES knock on your door demanding restitution for the breach of covenant, the pigs will dispose of their body quickly.

Land_Registry

RemotecUK wrote: »

This property was built before there was a centralised, or computerised version of the land registry. At some point someone decided to register this property with the registry which is "first registration". At that point in time, someone had a bundle of paper documents and submitted them to the land registry to register the property. Does that sound correct?

The first thing I don't understand is how, if this covenant was not originally submitted, can it be missing? There must of been some evidence of it for it to be noted as missing.

Does this meant that someone somewhere has a piece of paper that contains a restrictive covenant and they could at some point persuade a court that it is a valid document and that due to an action I have taken e.g. decided to keep pigs in the garden enforce the covenant?

In this case who "owns" the covenant? Is it attached to the land or to an individual?

If it is attached to the land could anyone attempt to enforce it? Would they be able to claim damages even if say they lived 100 miles away and had never been affected by my pigs? Could multiple people attempt to enforce the covenant meaning there are effectively unlimited liabilities? Do losses have to be proven as in contract law when claiming for damages?

If it is attached to an individual what type of claim could they make? Is there a limit of liability? Again would they have to prove that my breach of the covenant has affected them in some way?

The situation at present is that the vendor will not provide insurance for this unknown and unquantifiable risk and we do not know if we should proceed with the purchase.

I don't really understand how a claim could come about and what the limit of our liability would be if we did breach the covenant.

I have done some investigation by looking at the titles for neighbouring properties. One of the neighbours has a restrictive covenant dated at exactly the same date, mentioning the term "deed poll" and listing the same names. I guess it is reasonable to assume that this is the same restriction. But of course I cannot be certain.

The point of insurance in this case is to insure against an unknown risk. If we can be reasonably satisfied that next doors restriction is the same and my solicitor can decipher the text to find there is minimal risk do we need indemnification?

That's a lot of Qs and as suggested they are really for your solicitor to answer. And I would be wary of doing to much research for reason(s) I shall mention as part of one of the answers

So - corrcet re how the property was first registered

The deeds lodged will have made reference to this 'deed poll'/it's covenants but as it was not submitted we have to make an entry as to their existence - so there was the bare minimum evidence of their existence

Yes it means that there may be covenants which someone else can enforce
Restrictive covenants bind and run with the land. They will be for the benefit of other land and enforceable by the owner of that land.
They do not attach to a person so for example if A owned the benefiting land and sold to B then B now has the benefit as he owns that lat. A does not retain the benefit. And if A split the benefiting land in 2 or 3 or more and sold them to say B, c and D then the 3 new landowners would have the benefit.

Only those owners of the land with the benefit can enforce them. Where they live does not change their ownership of the benefiting land but may impact on any claims of loss/damage I suspect. Solicitor can advise

Indemnity insurance is something to consider but be wary of doing too much investigation. By doing so you may increase the risk and invalidate any chance of getting any insurance. So speak to your solicitor before doing anything else.