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Restrictive covenant consent not sought

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IruFar
IruFar Posts: 9 Forumite
edited 23 May 2019 at 6:54PM in House buying, renting & selling
Hi Guys,

I am in process of purchasing a property and after the search and Q&A with the seller, We found that the a kitchen and garage extension was done on the property (with planning permission) in 1990's which did not seek consent as per the covenant with the vendor (Mayor Aldermen and Burgresses of the County Borough of West Bromwich).
As the work was done over 20 years ago, Sellers solicitors has advised that this is not enforceable anymore. However as we are looking to convert this garage into a bedroom, our concern is that will it create any problem for us?


Covenant in question reads


Clause 3(a): To forthwith submit to the vendors for their approval details plans of one dwelinghouse to be erected on the land hearby conveyed such plans to be prepared by a chartered architect provided and it is hearby agreed that such approval shall be obtained from the vendors as vendors in addition to and not to substitution for any concent required to be obtained from them as local planning authority


Subject to the provisions of clause (3a) hereof not to erect on the land hereby conveyed any dwellinghouse bungalow or garage or other building or structure whether of permanent or temporary nature.


Any advise will be greatly appreciated.

Thanks
«13

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  • SmashedAvacado
    SmashedAvacado Posts: 1,262 Forumite
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    Ask your solicitor as he has read the documents and we can only guess what they say at the moment

    or

    Provide suitable detail of what the covenant says and why the seller's solicitor says its no longer enforceable.
  • IruFar
    IruFar Posts: 9 Forumite
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    Thanks... I have update the original post with what the clause reads.



    I have asked them as to what they think about it.
  • SmashedAvacado
    SmashedAvacado Posts: 1,262 Forumite
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    Clause X is pretty crucial here. What does that clause say?

    And what land is impacted (ie the land conveyed - is this the whole of your property or just part of it)
  • IruFar
    IruFar Posts: 9 Forumite
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    I have updated the post with the clause.



    Also doing some search online, it seems that "Mayor Aldermen and Burgresses of the County Borough of West Bromwich" was the local authority in 60's which was replaced with local council.
  • G_M
    G_M Posts: 51,977 Forumite
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    IruFar wrote: »
    As the work was done over 20 years ago, Sellers solicitors has advised that this is not enforceable anymore.
    Nowhere in the wording is the covenant restricted to 20 years. I suspect the seller's solicitor is either
    * ytying to mislead you to save the sale or
    * confusing this with Planning Consent (which is time-constrained).

    Also doing some search online, it seems that "Mayor Aldermen and Burgresses of the County Borough of West Bromwich" was the local authority in 60's which was replaced with local council.
    So the council could now enforce.

    what land is impacted (ie the land conveyed - is this the whole of your property or just part of it)
    Covenant applies to
    on the land hearby conveyed
    so unless the land has since been sub-divided it will apply to the whole plot.
  • James_d_2
    James_d_2 Posts: 31 Forumite
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    I think what he’s trying to say that after a structure has been up for 20 odd years that the convent could not be enforced not that the convent is only for 20 years as there has been many court cases and they basically won’t get anywhere if the breach is that old and no complaints have been made but doing anything else obviously will
  • G_M
    G_M Posts: 51,977 Forumite
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    James_d wrote: »
    I think what he’s trying to say that after a structure has been up for 20 odd years that the convent could not be enforced not that the convent is only for 20 years as there has been many court cases and they basically won’t get anywhere if the breach is that old and no complaints have been made but doing anything else obviously will
    Ah! You may be right.


    Do you know of any case law on that?
  • James_d_2
    James_d_2 Posts: 31 Forumite
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    I was reading a case on the net the other day and it said that the judge said after 20 years that is was long enough not to be inforceable and that after 12 I would also be reasonable enough
  • SmashedAvacado
    SmashedAvacado Posts: 1,262 Forumite
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    You can't enforce a restrictive covenant unless you have a legitimate interest to protect. To be enforceable, the covenant must actually benefit or preserve the value of the land of the benefiting party. If your extension would otherwise be appropriate and not harmful to neighboring land, i am not sure how they could argue that this is enforceable but the burden of proof is on you. .
  • IruFar
    IruFar Posts: 9 Forumite
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    Hi Guys,

    Some more information to share.

    Having read through the documents, Below are some of the points that I have noted.

    • It seems that a covenant was made with the vendor (Mayor Aldermen and Burgresses of the County Borough of West Bromwich) because they were developing the estate in 1968.
    • The vendor seems to be the council at that time and the document has a stamp of common seal of Mayor Aldermen and it signed by the mayor and the town clerk of the time.
    • Speaking to the estate agent, Their view is that they see lots of properties in the area which has this kind of restrictive covenant attached because the area was being newly developed at that time.
    • Searching through council website, It seems that lots of property in the same road / estate has been heavily extended & modified with full planning permission right from 1980 till today. Surely, they would have same restrictive covenant applied to them as well?

    Am I waiting for an official view from my solicitor to see what they say.

    Thanks
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