VERY old restrictive covenants

NicolaDod

Two main questions here:
Regarding very old restrictive covenants, how do I work out who the beneficiary is?

If the beneficiary breaches the terms are the covenants relating to the breach void?

 I am the leaseholder of a property that is subject to restrictive covenants, written up in 1882. One of the terms is that nothing can be erected within 15ft of our street apart from fences. Note there is no mention of this in the lease agreement so the following is based solely on the 1882 document. 

On reading this I told my solicitor I would want to put up a gazebo in the garden. She asked the developers who said they would not unreasonably refuse this when I ask for permission.

Having to obtain permission from them would mean two things:
1. They are the beneficiary of the covenants and are therefore the party to enforce /not enforce them

 them.
2. The covenants are not obsolete 

Re. Point 1:  
On the old list of covenants there are signatures, none of which belong to the developer; (I think) I now know that the benefit does not get passed on to whoever buys land, but rather has to be passed on by the original land owner.
I’m 90% sure the developers just went along with my solicitor asking about the gazebo, but don’t actually have the power to say yes or no.

 Is there a way to find out who the true beneficiary is?
 

Re. point 2:
The developer has plans to build a bungalow at the back of the garden. Please note this is a standard property (I.e. this is a fully fenced, London located, 16m x 10m garden; they would be building on the retained 10 x 10 at the back. I say this to emphasise the low probability of quirky laws or pardons).
The bungalow would breach the above covenant, which now makes me think it’s obsolete. 

Should it not be obsolete, and the developers are in fact the beneficiary do they therefore have the right to do what they want (planning permission permitted) or would their doing this void the covenant?

Unnecessary context:
I am not asking this to avoid being forthcoming, I’ve actually already sent pictures of the gazebo I want to the developers; but I don’t want to operate under a power they don’t actually have. 

Google has been more of a solicitor to me than my solicitor was. I don’t want to hire someone to give, what I think should be, publicly accessible answers. 

Thanks

Nicola

NewShadow

Google has been more of a solicitor to me than my solicitor was. I don’t want to hire someone to give, what I think should be, publicly accessible answers. 

You pay your solicitor not to tell you the law - as google can...with careful attention to the source of that information - but to help you understand how it might apply in your case given the course of action you may wish to take... hence it's generally expensive and inefficient for you to use them as a source of general legal education for the sake of your own curiosity. 

Anyone with any legal training can tell you the basics of property and contract law - which include the basic legal underpinning of covenants... and that the beneficiary of a covenant depends on the nature and specific wording of the covenant - it can be a single individual who retains control over the estate as successors in tittle to the original contractor, but covenants can also often be written so that anyone owning any part of the estate is a beneficiary of the covenant...  and all parties to the covenant could have agreed to set it aside at some point since it was originally agreed - which may be why it's not in your lease.  

It is often safe to assume - if your neighbours' properties were all built at around the same time - they are likely to all be bound by and have the benefit of the same covenants - the easiest way to check that is via the Land Registry - the easiest way to know what that means for you and your plans... is to get professional legal advice, starting with your solicitor... 

AdrianC

NicolaDod said:

Two main questions here:
Regarding very old restrictive covenants, how do I work out who the beneficiary is?

You don't.

They may have been sold, re-sold, inherited, lost in a game of poker, etc etc...

If the beneficiary breaches the terms are the covenants relating to the breach void?

Unlikely...

I am the leaseholder of a property that is subject to restrictive covenants, written up in 1882. One of the terms is that nothing can be erected within 15ft of our street apart from fences. Note there is no mention of this in the lease agreement so the following is based solely on the 1882 document. 

On reading this I told my solicitor I would want to put up a gazebo in the garden. She asked the developers who said they would not unreasonably refuse this when I ask for permission.

Having to obtain permission from them would mean two things:
1. They are the beneficiary of the covenants and are therefore the party to enforce /not enforce them

 them.
2. The covenants are not obsolete 

Re. Point 1:  
On the old list of covenants there are signatures, none of which belong to the developer; (I think) I now know that the benefit does not get passed on to whoever buys land, but rather has to be passed on by the original land owner.
I’m 90% sure the developers just went along with my solicitor asking about the gazebo, but don’t actually have the power to say yes or no.

 Is there a way to find out who the true beneficiary is?

So this is land that's subject to an ancient covenant, but has since been developed into the current housing - and it's the company who did that who you are now in discussion in about the gazebo...?

They may have bought the benefit of the covenant with the land. If they try enforcing it, ultimately they would need to prove it - and that's going to be a monumental expense all round for something so trivial.

I wonder if this might be a case where an indemnity policy might actually pay something out...? Ah, hold on. You've already asked them.

I don't think you can read too much into the fact you asked them about permission and they said they wouldn't refuse it. If I wanted to build something in my garden, I might decide it was polite to ask my neighbour if they minded - and they might or might not object. But that doesn't mean their objection carries any legal weight. 

Re. point 2:
The developer has plans to build a bungalow at the back of the garden. Please note this is a standard property (I.e. this is a fully fenced, London located, 16m x 10m garden; they would be building on the retained 10 x 10 at the back. I say this to emphasise the low probability of quirky laws or pardons).
The bungalow would breach the above covenant, which now makes me think it’s obsolete. 

Should it not be obsolete, and the developers are in fact the beneficiary do they therefore have the right to do what they want (planning permission permitted) or would their doing this void the covenant?

They simply give themselves consent.

Unnecessary context:
I am not asking this to avoid being forthcoming, I’ve actually already sent pictures of the gazebo I want to the developers; but I don’t want to operate under a power they don’t actually have.

Surely it's simpler than that - you don't want to pay them for giving you permission they don't have to...?

Personally, I'd just do it - and if they raise a question mark, then ask them if they're the beneficiary of that covenant.
But given that you've already asked about permission...

davidmcn

AdrianC said:

So this is land that's subject to an ancient covenant, but has since been developed into the current housing - and it's the company who did that who you are now in discussion in about the gazebo...?

They may have bought the benefit of the covenant with the land. If they try enforcing it, ultimately they would need to prove it - and that's going to be a monumental expense all round for something so trivial.

On the other hand, it's pretty likely there were more relevant covenants imposed by the developers about building new things in the gardens - has the OP checked there are no other restrictions? It's possible the developers have assumed it's one of their covenants which has been asked about rather than a more historic one.

Pretty daft to ask them before checking whether you have to though.

macman

You want a gazebo in the front garden?

NicolaDod

davidmcn said:

On the other hand, it's pretty likely there were more relevant covenants imposed by the developers about building new things in the gardens - has the OP checked there are no other restrictions? It's possible the developers have assumed it's one of their covenants which has been asked about rather than a more historic one.

Pretty daft to ask them before checking whether you have to though.

I’ve read the stipulations in my lease so many times I will soon know them word for word. No mention of restrictions outside of major construction work to my flat (moving walls, expanding, merging with another flat etc.). 

All things garden related are mentioned in the 1882 document. 

davidmcn

NicolaDod said:

davidmcn said:

On the other hand, it's pretty likely there were more relevant covenants imposed by the developers about building new things in the gardens - has the OP checked there are no other restrictions? It's possible the developers have assumed it's one of their covenants which has been asked about rather than a more historic one.

Pretty daft to ask them before checking whether you have to though.

I’ve read the stipulations in my lease so many times I will soon know them word for word. No mention of restrictions outside of major construction work to my flat (moving walls, expanding, merging with another flat etc.). 

All things garden related are mentioned in the 1882 document. 

Fair enough, but like I said it's unlikely the developers have bothered to re-read anything, and have just assumed that they do have the power to approve or refuse whatever you've asked them about. And even if they know they don't, I'm sure they'd gladly accept a fee for giving their opinion about it anyway.

NicolaDod

macman said:

You want a gazebo in the front garden?

No no, we each have allocated rear gardens (owned under leasehold) and I’d like to put a gazebo in mine. 

AdrianC

NicolaDod said:

macman said:

You want a gazebo in the front garden?

No no, we each have allocated rear gardens (owned under leasehold) and I’d like to put a gazebo in mine. 

And it would be within 5m of the road?

NicolaDod

AdrianC said:

NicolaDod said:

macman said:

You want a gazebo in the front garden?

No no, we each have allocated rear gardens (owned under leasehold) and I’d like to put a gazebo in mine. 

And it would be within 5m of the road?

Oh I see, I thought the wording meant the road including all property on it... not strictly the road to be driven on. 

I’ll leave now