Buying House that has Breached Restrictive Covenenants and Easements

Section62

Chandler85 said:

Given the cables must be deep given that the foundations of the extension didn't affect them.

That can't be inferred unfortunately.

See The_Real_Cheddar_Bob's ongoing saga of a water main and phone/internet duct which are buried less than a spade's depth below ground level, yet apparently run under a new build house which (it is key to note) has full building control signoff.

https://forums.moneysavingexpert.com/discussion/6265018/live-water-main-found-in-garden-new-build-property-developer-was-aware/p1

The cables should be deep enough that people don't accidentally dig into them, but there's no guarantee they were laid that way originally, nor that the ground level hasn't been altered at some point in the past.

The only way of finding out for sure is the cable owner tracing them and digging some trial holes to confirm the depth. (this isn't a DIY job either, it can be extremely dangerous)

Chandler85 said:

  Is it not worth trying to get the National Grid to double check there existence, I don't think most power cables show on searches (though maybe I just don't remember mine)

If it is the feed to a local substation then it would probably be the regional distribution network operator (DNO) that owns and is responsible for them, not the National Grid.

DNO assets typically don't get referred to in searches, unless there is something special about the equipment.

In any event, if the cables were National Grid ones then the voltage/security issues are such that the route would be regularly surveyed (usually by helicopter) and any building works identified and stopped long before completion.

There are other organisations that can own HV/MV electricity cables in back gardens - for example Network Rail and London Underground - but as the easement refers to the "electricity board" odds are that these are DNO cables.

Contacting the owner (e.g. the DNO) would almost certainly void any indemnity policy though.

Chandler85 said:

The building itself is fine if signed off, but that doesn't mean someone isn't going to want to dig it all up to deal with a cable in the future, and I'm not sure how the indemnity would solve it, it would stop legal issues, but if it was "garden" as such, then National grid would probably put it back as it.  If suddenly they are digging up the kitchen due to the breach, would they put it back?  Or would an indemnity cover that cost?

Sign off doesn't really mean very much (see The_Real_Cheddar_Bob's ongoing saga).

The issue is that if there is a problem in the future, the cable owner will not want the buildings replaced back over the top of the cables and will want to ensure the easement is respected going forward.

That is, unless the cables can be rerouted so they aren't under these buildings.  However, rerouting HV cables is complicated and expensive (in built-up areas the options are limited), so depending on the circumstances rerouting could cost more than the property the OP is buying is worth.

Therefore the likely worst case is as you suggest - the extension/outbuildings have to be demolished and not rebuilt.

Whether an indemnity policy will cover the cost of that work, plus the loss in value of the property, will depend on the wording of the policy.

RS2OOO

There is sufficient room on the plot to re-route cables from the point of plot entry to the point of plot exit without having to touch the building(s). Hopefully an indemnity can be made available to cover that eventuality.

Cables might already have been moved. But I suspect not since the majority of people appear ignorant to easements/covenants or have forgotten of their existence when they modify their property.

Additionally there's multiple drawings/plans associated with the deeds, all drawn within 3 months of each other, and each plan shows the cable in a slightly different position, and whilst all plans put the outbuilding on top of the cables, the cables in one of the plans just about miss the extension, albeit still in breach of the 1.5m access radius. 

RS2OOO

Received a letter from Conveyancer today in response to my questions saying: 

"I can confirm that you will receive automatic indemnity insurance on completion which will

protect you against any enforcement action taken in respect of breaching the covenants contained

within the title deeds.

I do however, believe that given the length of time the extension works and outbuilding have

been in situ that any enforcement action after such a time is unlikely."

I immediately called the conveyancer to say the letter didn't alleviate my concerns. I asked if a fault occurred within the cables underneath the property and the Electricity Board needed to access them or re-route them, who would be liable for those costs?

Her response was that these situations are very common and by going into such detail and asking such unrealistic questions I'm "too intelligent for my own good" and should just relax and enjoy the process. I told her that still isn't a satisfactory answer and she has asked me again to put my specific questions in writing and she will escalate internally for a response that "will put my mind at rest and finally allow me to look forward to moving into my new home".

EDIT:
To add, she also said when planning permission was granted for the extension and outbuilding they would have reviewed all restrictive covenants before approval. I said I didn't think planning permission would look at these documents. Her tone changed somewhat in a way that implied (to me at least) that I should do the conveyancing myself if I think I know so much!

Section62

RS2OOO said:

...

Her response was that these situations are very common and by going into such detail and asking such unrealistic questions I'm "too intelligent for my own good" and should just relax and enjoy the process. I told her that still isn't a satisfactory answer and she has asked me again to put my specific questions in writing and she will escalate internally for a response that "will put my mind at rest and finally allow me to look forward to moving into my new home".

EDIT:
To add, she also said when planning permission was granted for the extension and outbuilding they would have reviewed all restrictive covenants before approval. I said I didn't think planning permission would look at these documents. Her tone changed somewhat in a way that implied (to me at least) that I should do the conveyancing myself if I think I know so much!

Personally I'd be spending the next couple of hours finding myself a conveyancer with sufficient competence to do the job they are being paid for, rather than one who gets snarky because their lay client understands it better than they do.

To confirm - the main issue you have isn't "enforcement action", it would be the costs, losses and disruption in the event the electricity company needs to access their cables - that risk isn't limited to "enforcement", and doesn't lessen with the passage of time (in fact passage of time does the reverse - as it increases the risk of age-related deterioration of the cables and the risk of faults)

And you are correct - planning authorities don't review restrictive covenants before granting consent.

RS2OOO

Just typed up letter to conveyancers, the guts of which read as follows. If anyone suggests additional (or less) information I should ask, would be very grateful for your input.

Assuming for now the vendor took no action at the time of these building works and therefore the Easement / Covenants were breached and the cable(s) are indeed operational can you please answer the following:

1) If the cables develop a fault / require maintenance access / require replacement in the future and the DNO (Distribution Network Operator / successor to XXXXX) are unable to access them as per the terms of the Covenant / Easement, would I be expected to knock down the extension and outbuilding to allow them access, taking into considering that the extension has been in place unchallenged for 20 years? 

a) Can the DNO subseqeuntly enforce action to re-impose those covenants / easements thus preventing me from rebuilding / keeping the extension and double garage?

b) If yes to either question, can an indemnity cover be offered via yourselves or the vendor's conveyancer to cover all associated costs including cover for the loss of value due to the substantially smaller footprint of the now reduced dwelling size?

2) If the cables that appear to run under the house/outbuilding develop a fault / require maintenance access / require replacement  in the future in accordance with the terms of the restrictive covenant / cable easement and the DNO (Distribution Network Operator / successor to XXXXXXX) are unable to access them as per the terms of the Covenant / Easement can an indemnity cover be offered via yourselves or the vendor's conveyancer to cover all associated costs involved in re-routing the cables around the extension and outbuilding?

I appreciate that these are testing questions, and possibly not even relevant, but having come across stories of similar breaches, some with zero consequence, some with significant financial consequence it would really put my mind at rest to know the above risks can be mitigated / indemnified if they are indeed risks at all.

Section62

RS2OOO said:

There is sufficient room on the plot to re-route cables from the point of plot entry to the point of plot exit without having to touch the building(s). Hopefully an indemnity can be made available to cover that eventuality.

Bear in mind the cables typically serving a sub-station are large, and have minimum bend radii measured in metres - so they can't be nimbly rerouted around things, they need gentle transitions from the old route to the new, and for any other changes in direction.

Also the cable joints are large things, and often there will be a minimum acceptable spacing between adjacent joints, so a short diversion can require a much longer length of cable to be laid, just to conform to the specifications and standards.

This is one of the reasons why the easements for cables of this type are so wide - they need space around them to allow them to be worked on, not just to protect them from accidental damage.

user1977

RS2OOO said:

I can confirm that you will receive automatic indemnity insurance on completion which will

protect you against any enforcement action taken in respect of breaching the covenants contained

within the title deeds.

No idea what "automatic" indemnity insurance is! Has she provided you with a copy of the draft policy?

RS2OOO

Thanks @Section62

I had actually considered that potential. I think there is still enough room to re-route (the required 90 degree bend to re-route goes from 8 metres, to 4 metres and then into 1.6 metres) , but you are right, a longer cable would definitely be needed to accommodate this new bend radii.

A normal person might just walk away from the house, especially considering the amount of work needed to the house in general, but there's just something about me and big challenges, and this really is the only house we've seen in 6 months of searching a 100 sq mile area that ticks every single box. If it can work, I will do whatever I can to make it work.

I re-worded my letter slightly replacing "all associated costs" with "the costs, losses and disruption" as per the wording of your earlier comment.

It is very kind of you, and others, to have responded to my thread with such knowledge (more than the conveyancer in fact), really helpful so far, thank you.

Section62

RS2OOO said:

Just typed up letter to conveyancers, the guts of which read as follows. If anyone suggests additional (or less) information I should ask, would be very grateful for your input.

Assuming for now the vendor took no action at the time of these building works and therefore the Easement / Covenants were breached and the cable(s) are indeed operational can you please answer the following:

1) If the cables develop a fault / require maintenance access / require replacement in the future and the DNO (Distribution Network Operator / successor to XXXXX) are unable to access them as per the terms of the Covenant / Easement, would I be expected to knock down can they require the demolition of the extension and outbuilding to allow them access, taking into considering that the extension has been in place unchallenged for 20 years? 

a) Can the DNO subseqeuntly enforce action to re-impose ongoing compliance with those covenants / easements thus preventing me from rebuilding / keeping the extension and double garage?

b) If yes to either question, can an indemnity cover be offered via yourselves or the vendor's conveyancer to cover all associated costs including cover for the loss of value due to the substantially smaller footprint of the now reduced dwelling size?

2) If the cables that appear to run under the house/outbuilding develop a fault / require maintenance access / require replacement  in the future in accordance with the terms of the restrictive covenant / cable easement and the DNO (Distribution Network Operator / successor to XXXXXXX) are unable to access them as per the terms of the Covenant / Easement can an indemnity cover be offered via yourselves or the vendor's conveyancer to cover all associated costs involved in re-routing the cables around the extension and outbuilding to the company's satisfaction.

I appreciate that these are testing questions, and possibly not even relevant, but having come across stories of similar breaches, some with zero consequence, some with significant financial consequence it would really put my mind at rest to know the above risks can be mitigated / indemnified if they are indeed risks at all.

See suggested changes. Strikethough for deletion and bold for additions.

1) The practical reality is they are likely to do/arrange the demolition, then bill you for it. Your question is too narrow (if you want to cover the bases)

a) The covenants/easements (if they still exist) haven't gone away because of the building works, so they wouldn't be 're imposed' - you'd be reminded (firmly) that you are expected to comply with them on an ongoing basis.

2) The DNO might need to do more than the work you describe (see my previous post) so you need cover for whatever the DNO (reasonably) require to satisfy their needs.  E.g. that could involve digging up the neighbour's garden or lengths of public road, that an underwriter might claim isn't covered by the narrower wording you used.

RS2OOO

Brilliant, thank you.
Letter (email) re-worded as per your suggestions, and sent.

I look forward to updating you on the response/outcome.... whenever that may be!

However, I expect a less technical response, probably more on the lines of "if it bothers you don't buy the house".

This conveyancer was the most expensive of all those I approached for quotes. I wrongly thought they might employ a higher level of technical and legal ability to manage my expectations.