Restrictive Covenant queries

jones1328

Hi all,
I'm writing this message as we had agreed on the sale of our property but our buyers have pulled out, based on information given to them by their solicitors regarding existing restrictive covenants on our property. I believe our buyers were looking to erect a  summer house in the back garden and possibly extend the rear of the property (as per pretty much every other house on our street has done previously).

The two restrictive covenants that seem to have caused concern are as follows:

1. Except as provided in the next clause not to erect any building or other erection on the Property and not to erect or make any extension or alteration to a building or erection except of brick or other approved permanent construction in accordance with plans, elevations and specifications showing the materials, external finish and location previously approved in writing by the Vendor but this provision shall not relate to any buildings built or to be built on the Property by the Vendor.

2. No garden sheds shall be erected on the Property except of a type previously approved in writing by the Vendor

Our house was built in 1972 by a house builder called MacLeans & Sons, so I assume the vendor as referred to in the above covenants would be MacLeans & Sons?
MacLeans & Sons were bought out by Tarmac in the 1980's, who in turn who taken over by George Wimpey and then merged with another company to become Taylor Wimpey, to this present day.

Our house was actually extended in the late 1970's and a garden shed was erected in the back garden, around 3 years before we purchased the property (so around 8 years ago). I'm unsure as to whether permission was sought from the 'vendor' for the house extension, but am 99% certain that permission wasn't sought from the 'vendor' for the erection of the garden shed.

I suppose my questions are as follows:

1)  Would these restrictive covenants still be enforceable by Taylor Wimpey? The original vendor (MacLeans & Sons) have long gone and the covenant makes no mention of 'Vendors or successors in titles' 
2) If they are enforceable, pretty much all other houses on our street (along with ours) have been extended in various ways over the years, so what would the likelihood be of Taylor Wimpey pursuing us (or someone we sold to) for breach of covenant?
3) From what I've been reading up on, wouldn't any restrictive covenant have to be a  'burden' upon adjoining land owned by the Vendor? If Taylor Wimpey no longer own any adjoining land to ours, then wouldn't the restrictive covenants be unenforceable?

Thanks in advance for any clarification.

davidmcn

I suspect your buyers pulled out for other reasons and this was a convenient excuse. As you can see from the evidence of the neighbours, nobody is enforcing these covenants.

jones1328

Thanks David, any other advice in relation to my queries would be most welcome

FinallyStoppedLurking

From my limited experience RCs are a bit of a minefield. In a lot of cases they are very unlikely to be enforceable however nobody can say they definitely won't be.

Some buyers will be overly paranoid and put off, others will be completely fine (either because they are willing to take the risk or have no plans that would see them breach them).
In terms of 2, I would say extremely, extremely unlikely. 
In terms of 3, I believe that the other beneficiaries could seek to enforce them (ie, the other residents). Given everyone has breached these is is also extremely, unlikely. 

AdrianC

jones1328 said:

1)  Would these restrictive covenants still be enforceable by Taylor Wimpey? The original vendor (MacLeans & Sons) have long gone and the covenant makes no mention of 'Vendors or successors in titles'

Almost certainly, yes, they would be enforceable. Even if they turned out not to be, the cost of fighting the enforcement would be prohibitive.

2) If they are enforceable, pretty much all other houses on our street (along with ours) have been extended in various ways over the years, so what would the likelihood be of Taylor Wimpey pursuing us (or someone we sold to) for breach of covenant?

Almost certainly absolutely zero.

3) From what I've been reading up on, wouldn't any restrictive covenant have to be a  'burden' upon adjoining land owned by the Vendor? If Taylor Wimpey no longer own any adjoining land to ours, then wouldn't the restrictive covenants be unenforceable?

Again, whether or not they are is pretty much academic. The hassle and cost of fighting an attempt to enforce will be disproportionate - but it's vanishingly unlikely the situation will ever occur.

pinkteapot

Absolutely typical RCs for new-build estates, because the builder wants everything looking neat and tidy and uniform in the few years until the estate is complete (i.e. while more prospective buyers are still coming round). I think (?) they're sometimes time-limited. The builder really, really won't care once they've left the site. Either your buyer's overly paranoid, or actually pulled out for another reason. 

pinkteapot

FinallyStoppedLurking said:

In terms of 3, I believe that the other beneficiaries could seek to enforce them (ie, the other residents). Given everyone has breached these is is also extremely, unlikely. 

This is interesting because the thread did call to mind a situation my parents were in in the 90s... They bought a new-build. They were at the end of a cul-de-sac which had quite a narrow section as you drove down it. Someone with a house alongside the narrow section bought a huge campervan and parked it half on their front garden, half over the narrow road leading to my parents (and others) houses (that person's house only had a single driveway and they used that for their car). It made it really awkward for people to get past. 

A friendly word and cake failed, so mum had a solicitor write a letter citing the restrictive covenants (which included no campervans/caravans on the estate), which soon put a stop to it. I don't know if mum actually really had any weight to enforce it if the solicitor's letter hadn't done the trick though... 

jones1328

pinkteapot said:

Absolutely typical RCs for new-build estates, because the builder wants everything looking neat and tidy and uniform in the few years until the estate is complete (i.e. while more prospective buyers are still coming round). I think (?) they're sometimes time-limited. The builder really, really won't care once they've left the site. Either your buyer's overly paranoid, or actually pulled out for another reason. 

Thanks pinkteapot for your comments.
Yes, I believe RC's are normally time limited but there's nothing in our deeds which states any kind of expiry date.
Our buyer sighted "unusual restrictive covenants" as the reason for pulling out but as you (and many others) seem to suggest, the covenants we have appear to be fairly common.
It's a very frustrating situation...

EmmyLou30

If that is genuinely why they pulled out and not an excuse, you're probably better off getting shot of them now as they'd only be trouble later after the survey and at every little thing along the way. 

Yes the RC may still be enforceable but the likelihood is between zero and none after all this time on a 50yr old housing estate where the beneficiary is a developer. Even more so if neighbours have all breached them. You can get an indemnity policy which might make a buyer more comfortable about it. We did that when we bought our house (or rather the vendors did, we never asked them to as we didn't care), but then we fully intended to keep breaching them with a shed in the back garden and shrubs in the front garden higher than 3 foot (some really are ridiculous and no-one cares).  

badger09

EmmyLou30 said:

If that is genuinely why they pulled out and not an excuse, you're probably better off getting shot of them now as they'd only be trouble later after the survey and at every little thing along the way. 

Yes the RC may still be enforceable but the likelihood is between zero and none after all this time on a 50yr old housing estate where the beneficiary is a developer. Even more so if neighbours have all breached them. You can get an indemnity policy which might make a buyer more comfortable about it. We did that when we bought our house (or rather the vendors did, we never asked them to as we didn't care), but then we fully intended to keep breaching them with a shed in the back garden and shrubs in the front garden higher than 3 foot (some really are ridiculous and no-one cares).  

I'm no expert, but I think you can get an indemnity policy only in respect of an existing breach of the RC, rather than for any possible future breach.

As executor vendor a couple of years ago, I paid for indemnity policy as deceased had added a conservatory contrary to RC. The fact that many of the neighbours had done the same over many years didn't persuade the buyers. It was worth £140 rather than jeopardise the sale.

elsien

badger09 said:

EmmyLou30 said:

If that is genuinely why they pulled out and not an excuse, you're probably better off getting shot of them now as they'd only be trouble later after the survey and at every little thing along the way. 

Yes the RC may still be enforceable but the likelihood is between zero and none after all this time on a 50yr old housing estate where the beneficiary is a developer. Even more so if neighbours have all breached them. You can get an indemnity policy which might make a buyer more comfortable about it. We did that when we bought our house (or rather the vendors did, we never asked them to as we didn't care), but then we fully intended to keep breaching them with a shed in the back garden and shrubs in the front garden higher than 3 foot (some really are ridiculous and no-one cares).  

I'm no expert, but I think you can get an indemnity policy only in respect of an existing breach of the RC, rather than for any possible future breach.

As executor vendor a couple of years ago, I paid for indemnity policy as deceased had added a conservatory contrary to RC. The fact that many of the neighbours had done the same over many years didn't persuade the buyers. It was worth £140 rather than jeopardise the sale.

Parent was in that situation. Bought a property to run a business in then several years later it emerged that her solicitor had failed to spot a covenant that no business could be run from the premises. Building over 100 years old so the original builder was long gone, but the solicitor paid for the indemnity anyway to be on the safe side and for cover when it came time to sell.
The other covenant was about not taking a horse and carriage down the drive which was slightly less of an issue.