Restrictive covenant on house built 40 years ago

cockneyrebel

We have just bought a bungalow built in the early 1980's.  There are several restrictive covenants in place, including the 'post and chain' fencing along the front drive must be kept in place, the garden must keep the 3 foot tall wooden fencing on all sides, and we may only build one 8ft by 10ft garden shed.  These Covenants were put in place by the original company who built all the homes along this road.  We can understand them wanting to keep all the homes looking roughly alike when they were building in the area, but it was 40 years ago!  Our conveyancing solicitor said the covenants were still enforceable as there was no end date anywhere in them.

Before buying we wrote to the builder as we wanted to remove part of the post and chain fencing, the back garden has 6 foot fencing all around (and apparently has had for some years), and we want to build a larger shed/workshop.  They replied and said the fencing was not a problem but we needed to get their permission for any shed other than an 8ft by 10ft in the 'original style' approved by them when they built the bungalows.  We sent a rough plan of what we would like to build (a 24foot by 10 foot shed, along one side of the garden, no taller than a normal garden shed), and they have just replied stating that if we want them to consider this we need to pay them £180 so they will look at the plans and this is not a guarantee they will approve them, and there may be further payments required to enable us to build it.

We have just written to the builder asking them why they are still interested in what we, as current owners, are doing with our property 40 years after they originally built and sold it, seeing as they are no longer building in the area.  We are intending to take legal advice to see where we stand.  

Can anyone shed any light on why on earth a builder would include a permanent restrictive covenant on what every single owner can do, for ever, in that property?  And is there any way for them to enforce it - or, in fact, to even know the covenant has been broken, seeing as they have absolutely zero rights to enter our property to see what we are doing?  Is there any kind of indemnity insurance we can get to cover us for breaking the ridiculous covenant?

canaldumidi

cockneyrebel said:

 

Can anyone shed any light on why on earth a builder would include a permanent restrictive covenant on what every single owner can do, for ever, in that property?

Easier todo than to put an end date, when they don't know when they'll finish building in the area and/or continuing to own land in the area.

 And is there any way for them to enforce it Yes of course. Covenants are enforced via the courts.

- or, in fact, to even know the covenant has been broken, Probably not unless/until either a neighbour, or an owner tips them a wink. As you have done.....

 seeing as they have absolutely zero rights to enter our property to see what we are doing?  Ummm.. sure about that?

Is there any kind of indemnity insurance we can get to cover us for breaking the ridiculous covenant?

Yes, provided you don't first contact the covenant owner with details of your plans.......

Bit like getting a cancer diagnosis and then taking out private medical insurance to cover cancer. Policy would be invalid.

Regretably you have been hoisted by your own honesty......

aoleks

You started on the wrong foot…

Draft a nice email with clear plans and specs, tell them what you’d like to do and ask nicely to be given permission. It will cost, that’s normal, and £180 is a very, very reasonable amount.

No amount of legal action will change those covenants, they’re simply not worth the effort (and time, money etc).

Next time just build and get indemnity insurance, no one cares about the size of your shed.

Slithery

cockneyrebel said:

We have just written to the builder asking them why they are still interested in what we, as current owners, are doing with our property 40 years after they originally built and sold it, seeing as they are no longer building in the area.

Completely irrelevant. They don't need to have a reason.

diystarter7

Interesting thread.
A house we lived in London built in the 1930's a EoT house had about 15-foot wide land to the side and we had long gardens. The covenant stated no additional properties were allowed on the land. I'm sure the company had finnished years ago. Out of interest if those that put restrictions in place were no longer around, are you then only restricted by planning laws, and building regs?

canaldumidi

diystarter7 said:

Interesting thread.
A house we lived in London built in the 1930's a EoT house had about 15-foot wide land to the side and we had long gardens. The covenant stated no additional properties were allowed on the land. I'm sure the company had finnished years ago. Out of interest if those that put restrictions in place were no longer around, are you then only restricted by planning laws, and building regs?

No you are restricted by the covenant. In the same way that the speed limit remains 70 on motorways irrespective of whether the police are around or not.

Also bear in mind if the original covenantor has died, been take over etc, their Beneficiary or buy-out company inherits the covenant.

Additionally, the beneficiaries of the covenant may not be limited to the person or company that put the restrictions in place eg the Developer may have granted neighbouring properties the benefit of the covenant.

Gavin83

diystarter7 said:

Interesting thread.
A house we lived in London built in the 1930's a EoT house had about 15-foot wide land to the side and we had long gardens. The covenant stated no additional properties were allowed on the land. I'm sure the company had finnished years ago. Out of interest if those that put restrictions in place were no longer around, are you then only restricted by planning laws, and building regs?

Well technically the covenant still applies. However assuming no one else has benefit of the covenant then it’s essentially unenforceable.

We’re actually in this situation. The company who built the estate my house is on no longer exists but there are several covenants that state we need their permission for. Our solicitor advised if we needed permission we write to their previous head office address and the proof of postage would be enough. We certainly wouldn’t receive a reply, the building doesn’t exist anymore! 

Section62

aoleks said:

You started on the wrong foot…

Draft a nice email with clear plans and specs, tell them what you’d like to do and ask nicely to be given permission. It will cost, that’s normal, and £180 is a very, very reasonable amount.

No amount of legal action will change those covenants, they’re simply not worth the effort (and time, money etc).

Next time just build and get indemnity insurance, no one cares about the size of your shed.

The OP's comment - "...they have just replied stating that if we want them to consider this we need to pay them £180 so they will look at the plans and this is not a guarantee they will approve them, and there may be further payments required to enable us to build it."

...would tend to suggest the BiB is not true.

Indemnity insurance isn't a catch-all.  It isn't a proper substitute for getting permission (where possible) in advance of doing things that are restricted by covenant(s).

GDB2222

Our house has covenants that can be enforced by neighbours, and vice versa. That’s a massive shed that the op wants to build, and I can well imagine that the neighbours might check their 'deeds'.

Does a shed that size not need planning permission?  

Edit: Apparently not, usually!

anotheruser

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

Restrictive covenants do more damage than good these days.

They should automatically expire after a set amount of years.

Section62

anotheruser said:

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

Restrictive covenants do more damage than good these days.

They should automatically expire after a set amount of years.

Why?  The restriction that prevents my neighbours or I keeping hens is just as valid now as when the houses were first sold.  The one which stops my parent's neighbour building right up to their boundary is as useful now as it was when the building plot was created in the 1970's.  The ones stopping people putting 'stuff' in their front gardens and obstructing sightlines are as relevant to society as a whole today as when those houses were built.

Yes, £180 seems a lot for someone to say "yes" - but anybody who has purchased property and agreed to a covenant has agreed to those restrictions and doesn't really have much in terms of grounds for complaint.