Need advice on restrictive covenants and what the legal implications are

Cuticuraser

So I am in the process of purchasing a property where the rear garden shares a boundary with the TfL railway tracks.

I have received a plethora of legal documents from my solicitors including the title deed and restrictive covenants dating back to the 1950s. What immediately concerned me is that there are in fact restrictive covenants in place which effectively say that any maintenance works or other work undertaken by the railway company, that may damage my property, they are not liable. 

The TA6 form filled out by the vendors have ticked "No" in section 8.4 asking whether there are any restrictive covenants in place.

The title of deed states the following:

"The Transfer dated 25 January 1957 referred to in the Charges Register

contains the following provision:-

"IT IS HEREBY DECLARED that the Transferee shall not make any claim or

demand on the Commission in respect of any loss damage inconvenience

injury or annoyance cause either directly or indirectly to the land

hereby transferred or to the owners or occupiers for the time being

thereof by noise smoke sparks vibration floods settlement slip or

otherwise by reason of the maintenance or user of the Commission's

existing railway or works on the Commissions land adjoining or near to

the land hereby transferred and the Transferee hereby covenants with

the Commissions to Indemnify the Commission from and against all

liability in respect of such loss damage inconvenience injury or

annoyance as aforesaid which may be suffered by the Transferee or

tenants or occupiers of the land hereby transferred and all costs and

expenses in connection therewith.

(a) THERE are not included in this Transfer any easements or rights of

light air or support or other easement or right which would restrict or

interfere with the free use by the Commission or any person deriving

title under them for building or any other purpose of any adjoining or

neighbouring land of the Commission (whether intended to be retained or

to be sold by them

ANY portion of the said premises or parcels of land which shall not be

required by the Company for the purpose of their undertaking and which

the Company may be entitled to sell as superfluous land shall be sold

and conveyed subject to a provision or stipulation which shall be

inserted in the Conveyance thereof and for as may be to bind the land

so conveyed into whosoever hands the same may come that such lands

shall not be used as a manufactory or for the sale of ale beer wine or

spirits or as a refreshment room or refreshment rooms whether licensed

for the sale of ale beer wine or spirits or not nor as workmens or

artizans cottages or dwellings and that no act or thing shall be done

on such superfluous lands which may be a nuisance or which may be

prejudicial to other land now belonging to the Vendors adjoining to or

in the neighbourhood of the same provided that notwithstanding these

stipulations the Company shall be at liberty at any time to provide or

carry on or permit to be carried on at any Station erected by them on

any piece or parcel of land conveyed by the above written Indenture a

refreshment room or refreshment rooms and to erect on any of the said

pieces or parcels of land dwellings or cottages for their workmen or

other servants employed in or above the station at Black Burn Rd,

or at signal boxes within half a mile of such station.

2 The land is subject to the following rights reserved by a Transfer

dated 25 January 1957 made between (1) The British Transport Commission

and (2) Maylands Green Estate Co. Limited:-

(b) THERE are reserved to the Commission:-

(i) the right at any time to erect or suffer to be erected any

buildings or or other erections and to alter any building or other

erection now standing or hereafter to be erected on any part of their

adjoining or neighbouring land in such a manner as to obstruct or

interfere with the passage of light or air to any building which is or

may be erected upon the land hereby transferred and all privileges in

respect of the access of light and air over the adjoining land of the

Commission shall be deemed to be enjoyed by the licence or consent of

the Commission and not as of right

(ii) the right to have maintain use reconstruct alter and remove any

drains manholes pipes wires high tension or other cables posts and

works on over or under the said piece of land now used for the benefit

of the adjoining land of the Commission and the right to resite the

existing water pipe supply a Signal Box on the Commissions adjoining

railway in a new position close to the footpath dividing the land hereby transferred into two plots

(iii) the free right of passage and running of water and soil from any

part of the adjoining land of the Commission through any existing

sewers drains and watercourses

(iv) full right and liberty for the Commission and their successors in

title with or without workmen at all reasonable times to enter upon

such parts of the land hereby transferred which adjoin the land of the

Commission for the purpose of inspecting and if necessary in the

opinion of the Commission of maintaining repairing renewing reinstating

altering or amending any tunnels fence walls railway banks abutment or

retaining walls bridges wires high tension or other cables and other

works of the Commission."

3 A Transfer dated 30 May 1958 made between (1) Maylands Green Estate Co.

Limited and (2) Lai Cham Lamburt and Theodore Palski

contains restrictive covenants."

What does this all mean and does the fact that the vendors incorrectly filled out the TA6 form have any legal standing?

Jellynailer

Is your purchase being handled by a conveyancer or a solicitor and how far have you proceeded?

mybestattempt

Cuticuraser said:

So I am in the process of purchasing a property where the rear garden shares a boundary with the TfL railway tracks.

I have received a plethora of legal documents from my solicitors including the title deed and restrictive covenants dating back to the 1950s. What immediately concerned me is that there are in fact restrictive covenants in place which effectively say that any maintenance works or other work undertaken by the railway company, that may damage my property, they are not liable. 

The TA6 form filled out by the vendors have ticked "No" in section 8.4 asking whether there are any restrictive covenants in place.

The title of deed states the following:

"The Transfer dated 25 January 1957 referred to in the Charges Register

contains the following provision:-

"IT IS HEREBY DECLARED that the Transferee shall not make any claim or

demand on the Commission in respect of any loss damage inconvenience

injury or annoyance cause either directly or indirectly to the land

hereby transferred or to the owners or occupiers for the time being

thereof by noise smoke sparks vibration floods settlement slip or

otherwise by reason of the maintenance or user of the Commission's

existing railway or works on the Commissions land adjoining or near to

the land hereby transferred and the Transferee hereby covenants with

the Commissions to Indemnify the Commission from and against all

liability in respect of such loss damage inconvenience injury or

annoyance as aforesaid which may be suffered by the Transferee or

tenants or occupiers of the land hereby transferred and all costs and

expenses in connection therewith.

(a) THERE are not included in this Transfer any easements or rights of

light air or support or other easement or right which would restrict or

interfere with the free use by the Commission or any person deriving

title under them for building or any other purpose of any adjoining or

neighbouring land of the Commission (whether intended to be retained or

to be sold by them

ANY portion of the said premises or parcels of land which shall not be

required by the Company for the purpose of their undertaking and which

the Company may be entitled to sell as superfluous land shall be sold

and conveyed subject to a provision or stipulation which shall be

inserted in the Conveyance thereof and for as may be to bind the land

so conveyed into whosoever hands the same may come that such lands

shall not be used as a manufactory or for the sale of ale beer wine or

spirits or as a refreshment room or refreshment rooms whether licensed

for the sale of ale beer wine or spirits or not nor as workmens or

artizans cottages or dwellings and that no act or thing shall be done

on such superfluous lands which may be a nuisance or which may be

prejudicial to other land now belonging to the Vendors adjoining to or

in the neighbourhood of the same provided that notwithstanding these

stipulations the Company shall be at liberty at any time to provide or

carry on or permit to be carried on at any Station erected by them on

any piece or parcel of land conveyed by the above written Indenture a

refreshment room or refreshment rooms and to erect on any of the said

pieces or parcels of land dwellings or cottages for their workmen or

other servants employed in or above the station at Black Burn Rd,

or at signal boxes within half a mile of such station.

2 The land is subject to the following rights reserved by a Transfer

dated 25 January 1957 made between (1) The British Transport Commission

and (2) Maylands Green Estate Co. Limited:-

(b) THERE are reserved to the Commission:-

(i) the right at any time to erect or suffer to be erected any

buildings or or other erections and to alter any building or other

erection now standing or hereafter to be erected on any part of their

adjoining or neighbouring land in such a manner as to obstruct or

interfere with the passage of light or air to any building which is or

may be erected upon the land hereby transferred and all privileges in

respect of the access of light and air over the adjoining land of the

Commission shall be deemed to be enjoyed by the licence or consent of

the Commission and not as of right

(ii) the right to have maintain use reconstruct alter and remove any

drains manholes pipes wires high tension or other cables posts and

works on over or under the said piece of land now used for the benefit

of the adjoining land of the Commission and the right to resite the

existing water pipe supply a Signal Box on the Commissions adjoining

railway in a new position close to the footpath dividing the land hereby transferred into two plots

(iii) the free right of passage and running of water and soil from any

part of the adjoining land of the Commission through any existing

sewers drains and watercourses

(iv) full right and liberty for the Commission and their successors in

title with or without workmen at all reasonable times to enter upon

such parts of the land hereby transferred which adjoin the land of the

Commission for the purpose of inspecting and if necessary in the

opinion of the Commission of maintaining repairing renewing reinstating

altering or amending any tunnels fence walls railway banks abutment or

retaining walls bridges wires high tension or other cables and other

works of the Commission."

3 A Transfer dated 30 May 1958 made between (1) Maylands Green Estate Co.

Limited and (2) Lai Cham Lamburt and Theodore Palski

contains restrictive covenants."

What does this all mean and does the fact that the vendors incorrectly filled out the TA6 form have any legal standing?

I think it would be wise to ask your solicitor, who you say sent you the documents, about this.

EssexHebridean

Depending on how long the sellers have been in ownership they may simply have forgotten about the covenants - and although in reality they probably ought to have opted for a "don't know" response, I suspect this is going to be simple lack of awareness rather than a deliberate attempt to mislead. 

Questions to ask your solicitor to ask their solicitor though include
- Has there ever been any damage caused by TfL or their contractors to the property, including any trees or fences on the property?
- Have they ever had any communication from TfL in respect of accessing the trackside area via their property?
- To the best of their knowledge, has any work ever been done directly adjacent to the property?
- How often, if at all, are overnight works carried out on that section of track adjacent to the property? (ask your solicitor what they suggest in terms of what "adjacent" might mean - directly adjacent, within 10m, within 20m etc) 

A question for you to ask your solicitor is whether there is an indemnity policy that might be appropriate to protect you in the event of any damage being caused. 

user1977

I suspect the answer may be that there are statutory rights of compensation irrespective of how onerous the covenants appear to be. Quite a lot of obscure railway-related law.

Cuticuraser

user1977 said:

I suspect the answer may be that there are statutory rights of compensation irrespective of how onerous the covenants appear to be. Quite a lot of obscure railway-related law.

so the statuary rights of compensation supersede the covenant right?

Bookworm105

Cuticuraser said:

user1977 said:

I suspect the answer may be that there are statutory rights of compensation irrespective of how onerous the covenants appear to be. Quite a lot of obscure railway-related law.

so the statuary rights of compensation supersede the covenant right?

statute law always trumps contract law

user1977

What sort of scenarios are you actually worried about?

Cuticuraser

user1977 said:

What sort of scenarios are you actually worried about?

An event where TfL damange my side of the proporty boundary during their maintenance/repair works. Or if they decide to erect some sort of structure that blocks light to my property and/or creates additional noise.

theoretica

All sorts of neighbouring land owners might create additional noise or build things you don't like. 

Railways are usually quite keen to stop people wandering onto them, so probably value good fences.