restrictive covenants may have been lost

AdrianC

united_land_co wrote: »

Are you seriously suggesting that might be enforceable, when the houses have been standing for over 100 years??

Yes, they would be.

There are 2 broad kinds of inconvenience I'm thinking of.

1) Restrictions that impinge on my enjoyment of the property as a home. Insurance can't cover this. E.g. if I'm not allowed to play a musical instrument after 6pm, I may be miserable living there.

I don't play any instrument, so it wouldn't be at all inconvenient for me.

2) Restrictions which significantly affect the resale value of the property. Would insurance cover this, as opposed covering direct financial outlays?

But the restriction was there when you bought, there's been no change - so any effect on the value would already have been priced in on your purchase.

united_land_co

G_M wrote: »

Or running a business from the property.

That is relevant to me. However, I wouldn't be inconveniencing the neighbours more than somebody who stayed at home all day watching TV, because I'd just be working via Internet, phone, etc. Can I be confident that such a restriction wouldn't be enforceable for a businesses that doesn't inconvenience the neighbours in any detectable way?

davidmcn

united_land_co wrote: »

Are you seriously suggesting that might be enforceable, when the houses have been standing for over 100 years??

I don't think anyone is suggesting that there are any covenants likely to be enforceable and which anybody would try to enforce. That is rather the point, and why insuring against what risk might exist is so cheap.

There are 2 broad kinds of inconvenience I'm thinking of.

1) Restrictions that impinge on my enjoyment of the property as a home. Insurance can't cover this. E.g. if I'm not allowed to play a musical instrument after 6pm, I may be miserable living there.

2) Restrictions which significantly affect the resale value of the property. Would insurance cover this, as opposed covering direct financial outlays?

Insurance would cover the costs of defending yourself against somebody's attempt to enforce the no musical instruments covenant, and ultimately any loss in value if they were unsuccessful in defending an attempt to enforce a covenant. It wouldn't directly cover loss in value if buyers didn't like the idea of there being unknown covenants, but the insurance would be transferable at no additional cost to buyers and would protect them - so in theory there shouldn't be any loss in resale value.

ThePants999

Does this bit:

(XX.XX.200X) The Transfer to the proprietor contains a covenant of indemnity in respect of the covenants referred to in the Charges Register.

mean that you don't actually need insurance, because the previous owners are indemnifying against enforcement themselves?

davidmcn

ThePants999 wrote: »

Does this bit:

mean that you don't actually need insurance, because the previous owners are indemnifying against enforcement themselves?

Assuming you can find the relevant party who provided the indemnity and they have the resources to cover your loss, yes. Most people feel safer with insurance companies.

united_land_co

Update: I thought I'd have a look at the titles for the 2 immediate neighbours. Both titles refer to a deed, with the identical date, again involving the United Land Company. For one title, the deed is again missing, but for the other there is a copy with the Land Registry, which I have now obtained (for £7, by posting an OC2 form).

There is of course no proof that the deed affecting the property I'm interested in is the same deed as the one I'm now reading. But surely it's overwhelmingly likely that it is.

Parts of the deed are clearly no longer applicable (e.g. contributing to costs of maintaining the road until the LA have adopted it). Others might still be applicable, but are no big deal to me (i.e. they wouldn't noticeably affect my enjoyment of the property, nor its market value).

There's just one clause I'm a bit unclear about:

NN LOT SUBJECT TO TITHE. Lot NN must be taken subject to the payment of tithe or corn rent charges of about £N.NN.NN. per annum.

(I've replaced numbers with NN)

Note that I don't have any map showing lot numbers, so I've no idea which house corresponds to the lot number in question.

What kind of charge is that? Could it still apply? Why "about" so many £, instead exactly so many? (The annual sum stated is now trivial.) Could it have any nasty side-effects, other than the possible requirement to pay a trivial annual sum?

SmashedAvacado

Covenants are only enforceable where they actually provide something worth protecting to the land with the benefit. If the covenant has been breached for 100 years it would not be possible to demonstrate that the covenant should be enforceable. Let's not confuse anyone with the idea that breaching an old covenant does not matter - but where a breach has existed for 100 years I cannot possibly see that it could be enforceable.

elsien

united_land_co wrote: »

That is relevant to me. However, I wouldn't be inconveniencing the neighbours more than somebody who stayed at home all day watching TV, because I'd just be working via Internet, phone, etc. Can I be confident that such a restriction wouldn't be enforceable for a businesses that doesn't inconvenience the neighbours in any detectable way?

Parent had a covenant on a similar aged house stating that no business could be run from the property. Due to a negligent solicitor, this was not picked up on until after the house was bought and a business had been run from the premises for a number of years.
The business is still going strong 30 years later - not sure anyone but parent was ever aware of the covenant.
No-one can guarantee that such a restriction wouldn't have someone trying to enforce it at some point but if the original landowners are long gone, it's fairly unlikely.
(It also said she couldn't take a horse and carriage down the drive -that one was slightly less problematic.)

united_land_co

To recap: the property is a freehold house, which is subject to restrictive covenants contained in a deed dating from the 1880s (not long before the house was built), and this deed is missing. However, there is on record a copy of a deed similarly affecting a neighbouring property, and IMHO it's very likely that, were the missing deed discovered, it would turn out to be identical.

Unless and until it is discovered, would the courts refuse to assume that the deeds are identical, and therefore not allow the missing deed to be enforced?

But supposing, for the sake of argument, that I'm now reading a deed which does apply to the property I'm interested in ...

Some provisions relate to what the purchasers can do with each plot, viz. they can only build one house on each plot, and not build other temporary structures first, or use the plot as a road instead. There are also provisions about the building line, party walls (they are terraced houses), and minimum building value. And water closets or privies are not allowed to be built detached from other buildings! So all this is about what was done long ago. It must be a bit late to claim e.g. that a house hasn't been built in exactly the right place.

There is a requirement to contribute to the upkeep of the road, until the council adopt it, which they did long ago.

There is an undertaking by purchasers to maintain boundary fences, with a right if they fail to do this for the neighbouring property owner to repair it themselves and demand repayment of their costs. Is this different from the default laws about boundaries?

However, I don't have the plan showing which property owner is supposed to maintain which fences. So that might make it difficult to use this provision anyway. (Incidentally, how is one generally supposed to find out who is responsible for which fence?)

Then we come to the interesting bit: what uses can you not make of your one house on your plot? No sale (retail or wholesale) of alcohol. No manufacture. No noisy or offensive trade or business. No purpose which may be a nuisance or annoyance to the neighbourhood. No excavation for gravel, clay, or anything else. No brickmaking. No sale of building materials.

So my recreational alcohol use and quiet business activity is in the clear . And, in theory anyway, some of these restrictions might help if a neighbour is a nuisance or finds gold on their property and wants to start a mine?

But coming back to the one provision I was a bit confused by: one lot is specified (by lot number) to be sold "subject to the payment of tithe or corn rent charges of about £[a trivial amount] per annum".

Since I don't have the plan with lot numbers, I don't know which house that is. But I guess the odds are approximately 1 in 100 that it's the house I'm interested in.

My quick attempt at legal research by duckduckgo suggests that:

Corn rents were a replacement for tithes (a tenth of the produce of a piece of land, which went to support the church), which converted them to a monetary payment; the amount payable was effectively linked to the price of a basket of agricultural products — an early kind of indexation — so the amount in £ may have changed. (The right to receive corn rents may have passed to somebody else.)

Many corn rents were redeemed by the Tithe Act 1936, but not all.

The Rent Charges Act 1977, which sets most rentcharges to be extinguished in 2037, explicitly doesn't apply to any payment in lieu of tithes, so it doesn't apply to corn rents.

However, the onerous aspect of rentcharges (where a late payment entitles the rent owner e.g. to grant a long lease on the property, which would make it unsaleable) does not appear to apply to corn rents.

So this is all getting rather obscure, but I guess not something to worry about?

Anybody have comments, corrections, additional info?