Buying House that has Breached Restrictive Covenenants and Easements

RS2OOO

user1977 said:

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?

No, nothing, just the wording of that headed letter as posted above in its entirety.

Section62

RS2OOO said:

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:

Sorry, I missed that first time around.

It doesn't matter whether or not the cables are operational - it is the wording of the easements/covenants that are important.

Even if there is no cable at all, with the right wording the DNO could in theory require access to the land to install a brand new one.

More practically, some utility assets are kept in reserve, so a cable could be non-'operational' at this moment in time, but next week/month/year it could be brought back into use.

So for your purposes whether the cable is operational or not is likely to be irrelevant. Its all about the wording of the easements/covenants and whether they are still in place and applicable.

RS2OOO

Hi @Section62,

I had already responded prior to your suggested amendment to the wording of that sentence.

RS2OOO

I have now received a response from my Conveyancer to the letter I detailed earlier in the thread along with @Section62's suggested amendments.

Response states:
"....If the sellers did not obtain any consents in respect of the covenant you can look to rely on the attached indemnity policy with regards to the breach of the restrictive covenants...."

The response then goes on to talk about other options such as retrospective permission which would invalidate the indemnity cover.

The attached indemnity policy covers as follows:

What is insured?

 The cost of defending or prosecuting any claim

 Damages, compensation and costs awarded against you by a Court or Tribunal

 The expense of complying with enforcement action, an injunction, or an undertaking given by the

Insurer in your name, including the cost of demolishing, altering or reinstating any part of the

property

 Reduction in market value of the property following enforcement action by the local authority

and/or the beneficiaries of the restrictive covenants

 Any other costs and expenses incurred with the Insurer’s prior written agreement.

What is not insured?

Claims arising from or relating to:

× defective works and general maintenance and repairs, where there is no enforcement action

× additional works carried out to the property after the policy commencement date

× any works where consent was refused by the local authority prior to the policy commencement date

× structural defects identified in any survey carried out for and on behalf of any insured

× the property having been formed following conversion or sub-division to a flat

× any additional self-contained private dwelling or outbuilding used for residential accommodation,

which is separate to the main dwelling at the property.

× the enforcement of any restrictive covenants not specified on the policy schedule.

Are there any restrictions on cover?

! The policy does not cover claims by the local authority where there is no enforcement action,

including where there are defective works and/or general maintenance and repairs are required

! Cover only applies for the use and/or works at the property as stated on the policy schedule

! The policy cover and premium reflect the property in existence on the policy commencement date.

Any subsequent work or changes to the property are undertaken at your own risk

! The total amount payable by the Insurer for


To my eyes this cover appears to provide everything I would need. Total liability is £2 million, policy cost £25. 

Since the Conveyancer didn't actually answer my previous questions I've asked for confirmation this policy covers everything outlined in my previous questions and have also asked whether the policy is perpetual. 

michael1234

Even in the very worst case, I imagine it would be much cheaper to bore under the extension than to knock it down. Also is there an obvious route around it where no buildings currently stand?

In any case, I do hope you sort this out with a modestly priced indemnity policy.

RS2OOO

michael1234 said:

Even in the very worst case, I imagine it would be much cheaper to bore under the extension than to knock it down. Also is there an obvious route around it where no buildings currently stand?

In any case, I do hope you sort this out with a modestly priced indemnity policy.

Yes, there is an obvious alternative route which also has the benefit of not affecting the existing cable entry and exit points to the plot. 

Thanks for your support - I've never previously been through so much turmoil in the sale/purchase of a home, just problem after problem from day one -

1st buyers pulled out late into the process, another buyer attempted to change mortgage product 8 weeks into the process and then got rejected and lost original mortgage offer, a 3rd offer accepted and the buyer immediately went AWOL, and finally a 4th offer accepted £10k below asking and £15k below the 1st accepted offer and I discover today he's in process of remortgaging another property to free up deposit for ours which at best means the 3 weeks annual leave I've saved up for this move will expire before we move.

On the purchase....Tenants unprepared to vacate the house (they've gone now) unresponsive estate agents and conveyancers, estate agent parking his car to hide a property defect each time we viewed so we wouldn't see it (Surveyor earned his money spotting that one) then the cable issue - Will be nice to finally put that issue to bed.

RS2OOO

A final update on this as we have finally moved in.

• Where the restrictive covenant forbids planting of trees within 1.5 metres of the cable location along our northern boundary there is ('was' - I've chopped them down) a row of Sycamore trees. I discussed intentions with the neighbour who shares that boundary yet his deeds make no mention of the cable or any restriction to plant trees on his side of the boundary despite this being within 1.5 metres of the alleged cable location.

• The neighbour pointed out there was a huge 100+ year old tree that was felled to enable construction of my outbuilding (The building I'd been most concerned about in the OP since the plans show the cable directly under it).

• Following additional Solicitor enquiries the Vendors declared they dug 1.2 metre foundations for the extension and 80cm foundations for the outbuilding and witnessed no signs of a cable or ducting of any kind.

• Openreach cat-scanned our driveway ahead of digging to install a telephone line. The fella with the scanner said he did not locate any cables, only pipes.

• At the end of my back garden there's a 2 metre drop spanning 4 metres across what used to be a stream, beyond that is a 3 metre elevation forming the side garden of a property on the next Close. These elevation changes are located exactly where the cable is alleged to run. The owner of that property bought the land 50 years ago which is before my Estate was built and this contradicts the cable easement drawings dated 1978/9 showing the cable running beneath his land. I do wonder how likely it is to have installed this cable through an active stream 2 metres below our garden and then across his land 3+ metres above the stream, especially without the owner knowing about it!

With all this new information in mind, one has to wonder if the cable is really there.


Whilst on this post I want to thank everyone who contributed and offered advice. In particular @Section62 and @user1977 who I've come to recognise as being very helpful on this board regularly giving time to share high quality knowledge and information to help others.

Cheers.

aoleks

put it this way, the house was clearly allowed to be built and it's been there for decades now. if a problem developed exactly under your house (the house, not the extension), they wouldn't demolish the house, they'd work around it. those 3 or 4 meters of extension extra probably won't change the probabilities at all, so I can't see them demolishing your extension.