Deed Restriction Advice

wuptdo

I'm buying a relatively new house that is currently occupied. There is a list as long as my arm of things you can't do without the developers consent. Why people don't challenge these ridiculously overbearing restrictions/covenants on purchases is beyond me.

There are two deed restrictions that I'm not happy about and wondered if I could get some 3rd party advice alongside my conveyancer.

1) I can't build any structures on the land without the original developers consent. This consent can't be unreasonably withheld. Consent is not required for a conservatory, garden shed or greenhouse. I had intended to build something like a garage without a garage door for storage/workshop - can this be deemed a garden shed? Or do I become Oliver Twist with the developer?

2) I can't park 'any mobile home caravan trailer boat or any large vehicle exceeding 7cwt in weight'. 7cwt is 350kg. On those lines - I can't park my car. What are they driving around in? Even if its load capacity. My standard small car is rated to carry 500kg. A land rover - 1000kg.

Any help is appreciated.

princeofpounds

wuptdo said:

 Why people don't challenge these ridiculously overbearing restrictions/covenants on purchases is beyond me.

I guess because we don't build enough houses for the people that want to occupy them, so most house buyers have to compromise in some ways, and annoying covenants like these are typically seen as less of a burden than, for example, location or property condition.

Flippant (but probably correct) answers aside, I do agree that this is a very defective area of law. Developers put these clauses on to new developments for a perfectly valid initial reason - they want to protect the appearance of the estate whilst they sell further properties and develop adjacent phases. 

But there is no sunset clause, so they persist as some kind of zombie covenant - highly likely to never be enforced, once the developer is off-site, but remaining as a minor sticking point in legal transactions of the property forevermore. It's very unsatisfactory and the law society and government should probably be looking at this but they are dealing (painfully slowly) with much more important issues around leasehold reform these days.

Most people take a view that these things are not serious issues, but it still results in unnecessary expense of indemnity insurance and the slowing of transactions. And on very rare occasions, their interpretation isn't correct and a covenant beneficiary crawls out of the woodwork to enforce.

What is the legal definition of a garden shed? I don't know - that may be for a court to decide - but I can think of several possible criteria - size, construction, or usage. I would say that a large shed is still a shed, and you are using for shed purposes, so you would probably be ok. The other good thing is that it includes the 'not unreasonably withheld' clause - so you're probably only looking at a couple of grand for a surveyor to look at the plans and legal advice if they do decide to enforce, no premium for the development or anything. I'd be totally ok to take this risk personally, but be guided by your own legal advice.

The 7cwt limit sounds like a typo to me... it is a silly limit. Do adjacent properties have the same number on their title? I suspect everyone is parking their cars on their driveway? Then there isn't much practical risk of enforcement (they are rarely enforced even for caravans once developer is offsite). Again it would probably be down to the court to interpret but the intent of the clause is clearly against large vehicles. 

user1977

princeofpounds said:

wuptdo said:

 Why people don't challenge these ridiculously overbearing restrictions/covenants on purchases is beyond me.

The 7cwt limit sounds like a typo to me... it is a silly limit. Do adjacent properties have the same number on their title? I suspect everyone is parking their cars on their driveway? Then there isn't much practical risk of enforcement (they are rarely enforced even for caravans once developer is offsite). Again it would probably be down to the court to interpret but the intent of the clause is clearly against large vehicles. 

And I would think it clear from the context that cars are expected to be parked (indeed I presume it would have been a planning requirement that there's off-road parking), so nobody's going to be daft enough to argue that a car is deemed to be a prohibited "large vehicle" merely because it's over 350kg.

wuptdo

princeofpounds said:

wuptdo said:

 Why people don't challenge these ridiculously overbearing restrictions/covenants on purchases is beyond me.

I guess because we don't build enough houses for the people that want to occupy them, so most house buyers have to compromise in some ways, and annoying covenants like these are typically seen as less of a burden than, for example, location or property condition.

Flippant (but probably correct) answers aside, I do agree that this is a very defective area of law. Developers put these clauses on to new developments for a perfectly valid initial reason - they want to protect the appearance of the estate whilst they sell further properties and develop adjacent phases. 

But there is no sunset clause, so they persist as some kind of zombie covenant - highly likely to never be enforced, once the developer is off-site, but remaining as a minor sticking point in legal transactions of the property forevermore. It's very unsatisfactory and the law society and government should probably be looking at this but they are dealing (painfully slowly) with much more important issues around leasehold reform these days.

I understand why there is little time for it in the regulation sense. However in the personal sense - I never read software agreements etc - however this is perhaps the most expensive transaction of most peoples lives - why don't people have a read and challenge things don't appear sensible. In my old job in a technical role, I would be asked on the odd occasion to read through commercial contracts and scribble / suggest rewording for bits I didn't agree with which would lead to a negotiation - why isn't this standard practice in this context for the sake of an hour of your own time reading?

princeofpounds said:

Most people take a view that these things are not serious issues, but it still results in unnecessary expense of indemnity insurance and the slowing of transactions. And on very rare occasions, their interpretation isn't correct and a covenant beneficiary crawls out of the woodwork to enforce.

Ah but this is where it gets complex. The property I'm buying isn't that old. The adjacent property - the only one left - still hasn't sold (it's very a large property and was the last to be finished). So the covenant beneficiary still very much has an active interest. Whilst I could sit and wait for it to sell - the area is set to become a conservation area at the start of next year - removing PD rights - which I'd need for the 'shed'.

What is the legal definition of a garden shed? I don't know - that may be for a court to decide - but I can think of several possible criteria - size, construction, or usage. I would say that a large shed is still a shed, and you are using for shed purposes, so you would probably be ok. The other good thing is that it includes the 'not unreasonably withheld' clause - so you're probably only looking at a couple of grand for a surveyor to look at the plans and legal advice if they do decide to enforce, no premium for the development or anything. I'd be totally ok to take this risk personally, but be guided by your own legal advice.

Thanks for this, is there any documentation you can point me to that documents the 'not unreasonably withheld' clause in this context. And how you know the approach is to appoint a surveyor to decide if it's reasonable if they do decide to enforce. I'm trying to get a gauge for the cost of this route versus the ask (pay) for permission route (if I'm at all permitted).

user1977 said:

princeofpounds said:

The 7cwt limit sounds like a typo to me... it is a silly limit. Do adjacent properties have the same number on their title? I suspect everyone is parking their cars on their driveway? Then there isn't much practical risk of enforcement (they are rarely enforced even for caravans once developer is offsite). Again it would probably be down to the court to interpret but the intent of the clause is clearly against large vehicles. 

And I would think it clear from the context that cars are expected to be parked (indeed I presume it would have been a planning requirement that there's off-road parking), so nobody's going to be daft enough to argue that a car is deemed to be a prohibited "large vehicle" merely because it's over 350kg.

Thanks for the feedback here both of you. I'm still not a fan of the ambiguity of 'large vehicle' with such a low weight limit - does it not render the whole restriction void? I have an interest as there's a reasonable chance I could get a medium sized van in the near future. 

user1977

wuptdo said:

I have an interest as there's a reasonable chance I could get a medium sized van in the near future. 

Which is the sort of thing they are probably intending to prohibit.