Covenant Help

squigglebit

Hi Everyone, we're looking at a property that has covenants; the one that concerns us is point 2
 (I've removed dates and names for privacy) this is what's shown in the title deeds. The land around the property and throughout the area is owned by the person who has imposed the covenant, however the property we are looking to purchase is by far the least visually desirable of all of them and the "garden" (loosely used) is just an overgrown wilderness of weeds and brambles.

This register contains any charges and other matters that affect the land. 1 (date) A Transfer of the land in this title and other land dated DATE made between (1) NAME (Transferor) and (2) NAME (Transferee) contains the following covenants:-

"The Transferee hereby covenants with the Transferor:-
 (a) Not to sell or dispose of any earth clay gravel or sand from the property nor to make any excavation except only for the purpose of carrying out necessary works to the property provided that the Transferee may use for the purpose of any such works any clay gravel or sand which it may be necessary to excavate

(b) Not to build or permit to be built or erected or to make any alterations except in accordance with plans elevations and specifications previously approved by the Transferor or his successors in title

(c) Not to do or suffer to be done upon the property anything which may be to the annoyance damage or disturbance to the occupier of any adjoining or neighbouring property or land and not to use or permit the property to be used otherwise than as a private dwellinghouse"

canaldumidi

I'm not sure what you're question is.

The wording of the covenant seems fairly clear - is there something in it you do not understand?

The intents also seem fairly clear - they don't want the land in the area, including that you propose to buy, to be used as a gravel pit, or similar commercial purposes, nor do they want extensive (or any) further building on the plot.

Whether minor infringements would be enforced (eg building an extension), or granted consent, depends on the beneficiary of the covenant.

squigglebit

I guess I just wanted to know to what extent it would affect our intention to build an extension and how enforceable it is 

aoleks

A covenant is not always a problem. Most are not enforceable and you can solve the problem by asking for permission from the entity who imposed the covenant in the first place.

very unlikely you’ll be denied permission to build an extension, for example.

squigglebit

aoleks said:

A covenant is not always a problem. Most are not enforceable and you can solve the problem by asking for permission from the entity who imposed the covenant in the first place.

very unlikely you’ll be denied permission to build an extension, for example.

Is there anything in the above you think is unenforceable? 

We love the area and want to make the property and land much nicer than it is which would surely have a positive impact.

aoleks

What do you mean by making it nicer? If you’re talking about improving your house with an extension or simply landscaping the garden, you’ll most likely be fine.

if you want to build another house there, you probably won’t. Your aolicitor should be able to explain these things properly. Find out who owns the covenant.

also, do you have neighbours? If no one complains, it will never come to light.

squigglebit

The garden is literally a wilderness it’s full of scrap metal, brambles taller than the property in places and is nothing more than a scrub piece of land. We’d love to landscape the garden so it can be enjoyed and eventually build an extension out the back of the property.

It’s a secluded detached house with a farm at the back and property to our right (both owned by the person who imposed the covenant)

Section62

aoleks said:

A covenant is not always a problem. Most are not enforceable....

I don't think there is any basis for that assertion.  There's a difference between covenants not being enforced, and them not being enforceable.

It would be wrong to give the impression that more covenants are not enforceable than are enforceable.

aoleks said:

very unlikely you’ll be denied permission to build an extension, for example.

Without knowing a lot more about the situation you simply cannot say that.

For example, if the beneficiary of the covenant still has an interest in the neighbouring land (as applies in this case) then it is quite possible they will object to any development they perceive may have a negative impact on them or the value of their property.

After all, that's one of the main reasons why landowners impose restrictive covenants when they sell part of their land holding.

canaldumidi

The fact that "The land around the property and throughout the area is owned by the person who has imposed the covenant, " makes it far more likely that they would a) become aware of infringements and b) consider enforcement, than if a developer had created the covenant, sold all the surrounding land, and then moved on (which often happens on new estates).

But clearly you would need their consent for an extension (" to make any alterations except in accordance with plans elevations and specifications previously approved"). I imagine any reasonable proposal would be granted, perhaps subject to you paying the admin fees and surveyor fees to examine the proposal, and refusal could be challenged if unreasonable.

squigglebit

I would imagine that landscaping a proper garden rather than one that resembles a dumping ground would only have a positive impact on their land.

surely the neighbouring property (which the rent out) would be more desirable with a nice view rather than one that in parts looks like a scrap metal yard.

canaldumidi

So you keep saying. And yes, that's common sense which often, but not always, prevails! But the covenant also says: "except only for the purpose of carrying out necessary works to the property...." which would almost certainly cover garden landscaping.

As I said, I believe the area is a potential gravel pit? Almost certainly the owner of the neighbouring land (who created the covenant) does not want you selling off gravel/clay etc to a developer who will send in trucks and dig out the groud leaving holes/lakes/whatever.....