Restrictive covenant

eddddy

Tulips2lips said:

...he has been approached by a developer to sell some of his land to provide an access to the landlocked field.  

Is your son's land the only viable access to the land? Or are there other pieces of land the developer could acquire?

Either way, it's likely to be very valuable to the developer - so, as above, your son should get professional advice about it's valuation.


Typically, developers work like this:

The developer would want your son to sign a conditional contract (or option to purchase) which lasts around 18 months. (So you should instruct a suitable solicitor to advise you on this.)

During that 18 months, the developer would get everything in place (plans, surveys, etc) for submitting a planning application, including time for an appeal if the initial application is rejected.

If planning consent is granted, the developer would go ahead and purchase your son's land. If planning consent is refused, the developer would walk away.

So this would mean your son's plans to do anything else with the land could be 'in limbo' for 18 months, until the results of the planning application are known.

sheenas

Disclose the convent and sell access to builder, make sure you get advice on selling price as it could cover the cost of build a house and any legal costs you encounter.

martindow

sheenas said:

Disclose the convent and sell access to builder, make sure you get advice on selling price as it could cover the cost of build a house and any legal costs you encounter.

And don't forget to tell the nuns what's going on.

SarahB16

Not sure I'm adding much more than what has already been said but to summarise, in my opinion:

Potential for the developer to pay a significant amount in order to gain vehicular access to the land (especially so if it's the only access).

Would your son actually now wish to live there.  An alternative might be that your son sells the whole piece of land that he owns to the developer (and for a significant sum).  

Your son may think what the developer offers is a lot (it won't be).  Your son may wish to request a payment for the land and also to enter into an overage agreement too with the developer, i.e. for every home sold on the developer's field sold above the sales price of x (amount to be mutually agreed between your son and the developer) your son receives say 10% (percentage to be agreed) of the sales proceeds above x.  

Section62

SarahB16 said:

...
Your son may think what the developer offers is a lot (it won't be).  Your son may wish to request a payment for the land and also to enter into an overage agreement too with the developer, i.e. for every home sold on the developer's field sold above the sales price of x (amount to be mutually agreed between your son and the developer) your son receives say 10% (percentage to be agreed) of the sales proceeds above x.  

On the other side of the coin, he also needs to be aware if the council is supportive of the larger development they could be persuaded (by the developer) to use CPO powers to acquire the land needed to provide the access.  Whether that might be an option would depend on how keen the council is to meet its new homes target.

This is why professional advice is essential.  The OP's son has a strong hand, but could risk overplaying it.

Tulips2lips

LightFlare said:

wouldnt the problem (if any) be the developers anyway being the landowner ?

The developer doesn't own my son's land or the covenant.

user1977

Tulips2lips said:

LightFlare said:

wouldnt the problem (if any) be the developers anyway being the landowner ?

The developer doesn't own my son's land or the covenant.

The point is that they will own the access road once they've bought it from your son. So it wouldn't be your son's problem.

Tulips2lips

martindow said:

sheenas said:

Disclose the convent and sell access to builder, make sure you get advice on selling price as it could cover the cost of build a house and any legal costs you encounter.

And don't forget to tell the nuns what's going on.

Yes I'm in the "habit"of disclosing lol

MarlowMallard

Tulips2lips said:

My son has recently purchased a plot of land to build a house.  There is a restrictive covenant that the land can only be for one house and garage but as there is a large field to the rear he has been approached by a developer to sell some of his land to provide an access to the landlocked field.  Would an access road be in breach of the covenant only to build one house with garage?  Thank you for any advice you can offer.

EDIT:

THANKS EVERYONE FOR YOUR HELP!  MY SON CHECKED WITH THE OWNER OF THE COVENANT AND IT WOULD BE A BREACH AS THE LAND IS ONLY TO BE USED FOR ONE DWELLING WITH GARAGE.  THEY ARE A VERY LARGE ORGANISATION AND NOT TO BE MESSED WITH!  

Regarding "checked with the owner of the covenant..." -  they could well be lying to him, in the hope that he pays them a heap of money to drop the covenant. The covenant may not apply to a road.  You need to consult an independent solicitor specialising in property law.  

eddddy

Tulips2lips said:

My son has recently purchased a plot of land to build a house.  There is a restrictive covenant that the land can only be for one house and garage but as there is a large field to the rear he has been approached by a developer to sell some of his land to provide an access to the landlocked field.  Would an access road be in breach of the covenant only to build one house with garage?  Thank you for any advice you can offer.

EDIT:

THANKS EVERYONE FOR YOUR HELP!  MY SON CHECKED WITH THE OWNER OF THE COVENANT AND IT WOULD BE A BREACH AS THE LAND IS ONLY TO BE USED FOR ONE DWELLING WITH GARAGE.  THEY ARE A VERY LARGE ORGANISATION AND NOT TO BE MESSED WITH!  

You should leave the developer's legal team to investigate this.

It's up to the developer (and their legal people) to read the covenant, and decide whether they want to go ahead and buy the land and build a road on it.

And/or the developer can decide whether they want to negotiate with the owner or beneficiary of the covenant.

MarlowMallard said:

You need to consult an independent solicitor specialising in property law.  

I'm not sure if that would help the OP. The developer won't buy the land based on advice from the OP's solicitor, they'll get their own legal advice.