Help! Restrictive Covenant

by Readers Question

8:28 AM, 26th March 2018
About 7 months ago

Help! Restrictive Covenant

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Help! Restrictive Covenant

The restrictive covenant found against my property:

Not to use or allow or cause the property to be used for any purpose other than that of a single private dwelling house.

I would like to know exactly what this covenant states and means in practice.

I am looking to put another dwelling onto my land and wanted to know if I could bypass this some how or if there is any way of lifting the restriction.

All help is appreciated thanks guys.

Nick



Comments

Neil Patterson

9:57 AM, 26th March 2018
About 7 months ago

Hi Nick,

I have seen all sorts of weird and wonderful restrictive covenants. Especially agricultural ones such as the property must have a percentage used for chicken or pig farming. I am in Norfolk though!

These should be picked up by your solicitor on the searches when you purchased the property. Was it mentioned to you at the time?

Hopefully your local council should have records and may be able to indicate if they are willing to lift the restriction.

Ian Narbeth

11:28 AM, 26th March 2018
About 7 months ago

Hi Nick
The law of restrictive covenants is complex. Many that I have looked at are unenforceable. You need to take proper legal advice as without sight of the registered title and an understanding of the situation it is not possible to advise.

However, whatever you do, do NOT talk to the neighbours or the Council about the covenant without taking legal advice as doing so can prejudice you.

Yvonne Francis

15:49 PM, 26th March 2018
About 7 months ago

Yes Nick as the other two suggest you do need professional advice but why do they presume it is the doing of the Council? They may of course presumed correctly but I have bought several properties with covenants including my own home which has one just like you have Nick but this was put on by my next door neighbour when he sold me the property 40 years ago. He has since moved so I would seriously question if this is still valid?

Most notably I purchased a shop which had incredible restrictive covenants and after legal advice taken at that time, I could have had them removed if every one who could benefit from them would sign away their rights. The beneficiaries were all the occupants of a housing estate next to the shop and I was told if I had every occupier sign a disclaimer the covenant could be removed. Off course this would have been impossible to do so I had to trust that no one would in this day and age be interested or if they were could they claim damage?

Ian Narbeth

17:04 PM, 26th March 2018
About 7 months ago

Reply to the comment left by Yvonne Francis at 26/03/2018 - 15:49
Yvonne
I mentioned the Council because Nick did.

The fact that the covenant is 40 years old and that your neighbour has moved does not necessarily mean your covenant is not enforceable.

It may be possible to remove or modify freehold restrictive covenants but that requires a detailed review.

david Brinsden

17:15 PM, 26th March 2018
About 7 months ago

Not unusual with ex LA properties.
I own one which I converted in to 2 flats & needed to get it lifted but local council being complete idiots forgot to enforce it & I believe if not enforced after 13 years of their knowledge then unenforceable?

Neil Harvey

18:00 PM, 26th March 2018
About 7 months ago

Hi Nick,
This is a very complex area. You have not actually posted enough from your deeds I don't think for anyone to give you even half solid advice.
What I can say is this, the covenant is restrictive by nature. It will stop you from building a new house, if it is valid and if it's enforceable. I am no expert, but had a similar situation myself recently.
To be valid, amongst other things, it must have been correctly registered.
To be enforceable, amongst other things I think, there must still be a defined beneficiary.
There are a number of ways to deal with it. Some options are below:-
1) Ignore it, if you get planning permission, build. Very risky, someone could get a court injunction against you and then you have a big costly problem.
2) Take out legal indemnity insurance. You might be able to do this before getting planning permission, but they will probably want permission to be in place. Why? Because then they see if the neighbours raise objections on account of covenants, and see the risk level there. Covenants are ignored by planning department in their decision making.
3) Approach the beneficiaries and try to negotiate it away. That would then make insurance unavailable, as you have alerted them. A path to be avoided without the proper advice I would say.
4) Get planning permission, then advice of a barrister, or vice versa, maybe take cheapest option first. Or maybe a simple pre-app advice application, before any next steps, to see how likely you are to be successful at planning stage.

A barrister can properly advise on the covenant, what level of risk it presents to you, and what options are open to you.
Do a lot of research yourself. A good starting point is http://www.landcovenants.com. One of the owners of that site is a barrister called Andrew Francis, he writes a book on the topic. Borrow it from the library as background reading. If you want professional advice from one of the country's leading barristers, I would recommend Andrew. It's such a complex area, an opinion from any barrister is possibly money wasted, as I found out to my cost.

Prakash Tanna

7:49 AM, 27th March 2018
About 7 months ago

All depends on who was the right to the RC. Your deeds will shed light on this. I would not speak to anybody about it at this stage apart from a Solicitor / Barrister as you may be able to take out an indemnity insurance policy to protect yourself after obtaining PP for the additional dwelling provided that nobody raises an eyebrow about the RC during the planning application process. BUT if you approach the owner or the successors of the RC in any way shape or form you will not be able to take out the insurance policy.

As a developer there are many RC's that one would ignore (the one's worded like riddles !!) BUT this is not one I would ignore. Get your Solicitor to research it and advise before proceeding.

Goodluck !!

Puzzler

11:26 AM, 31st March 2018
About 7 months ago

Why do you want to know? A single dwelling means that it cannot be used for business (I think clerical work is excepted) nor can it be let to a group of unrelated sharers either on one tenancy or individual ones (HMO). Two unrelated sharers is OK.

H B

20:01 PM, 1st April 2018
About 7 months ago

Reply to the comment left by Puzzler at 31/03/2018 - 11:26
It says in his OP that:

"I am looking to put another dwelling onto my land"

I think that that is why he wants to know.

Yvonne Francis

12:14 PM, 2nd April 2018
About 7 months ago

Reply to the comment left by Ian Narbeth at 26/03/2018 - 17:04
Hi Ian, Just to say if you had previous knowledge from Nick that the covenant was put on his property by the Council then why did you not suggest that was put in his posting or even mention your knowledge in your first posting. Like so many postings on 118 they either go into a lot of emotional stuff which clouds the issue or they like this one very brief and do not put out very relevant information.

As to my own covenant I only suggested (yes suggested) it may not be forcible because the person benefiting from this although an extremely intelligent hard nut, enough to have made millions from nothing and quick to take any advantage of anything which may benefit him, was from conversations with him blissfully unaware, even suggesting I develop my two acre garden which lies within (to say the least) a housing development hot spot. Luckily I've had no desire to do any thing like this or even develop my own extensive property. It did have plans to convert to three units when I bought it 40 years ago. However I am savvy enough to know that anything I do would have to be done with professional legal advice (as Nick should do) and not guesswork or even advice on 118 well before I even dreamt of any plans of this nature.

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