House purchase - negative covenant
Discussion
I am buying a lovely one off new-build house, but there are many downsides.
have just seen the title with a covenant in favour of the transferor of the subdivided land.
Only the building as per planning submission xxxx may be erected and not make any alterations or additions without the approval of the transferor or successor...
No mention of reasonableness.
So the question is, what constitutes an alteration within this meaning?
Adding external CCTV cameras?
Adding a washing line
Installing smoked glass windscreen to the deck.
Does any alteration have to be line of sight of the transferor's property to be actionable?
Or does it have to be one that requires planning approval perhaps.
The covenant seems rather broadly drawn.
Should I run a mile?
Nic
have just seen the title with a covenant in favour of the transferor of the subdivided land.
Only the building as per planning submission xxxx may be erected and not make any alterations or additions without the approval of the transferor or successor...
No mention of reasonableness.
So the question is, what constitutes an alteration within this meaning?
Adding external CCTV cameras?
Adding a washing line
Installing smoked glass windscreen to the deck.
Does any alteration have to be line of sight of the transferor's property to be actionable?
Or does it have to be one that requires planning approval perhaps.
The covenant seems rather broadly drawn.
Should I run a mile?
Nic
First, if it's a new build and you're the first purchaser of a sub-divided plot, the terms of any covenant will certainly be negotiable. So tell your conveyancer to do his or her job and negotiate it - either remove it completely or water it down.
Second, alterations means what it says (which is wide) though I suspect the seller only cares about extensions and only about those if they affect the other properties' view, light etc. There is no implication that the covenant is limited to alterations which are visible, or require planning consent; you'd have to write that in.
Second, alterations means what it says (which is wide) though I suspect the seller only cares about extensions and only about those if they affect the other properties' view, light etc. There is no implication that the covenant is limited to alterations which are visible, or require planning consent; you'd have to write that in.
Whilst I wouldn't disagree with the advice so far, what is the nature of the covenantor - are they a developer putting numerous homes on a development or is it a one off in the grounds of a house that the Covenantors live in?
If the former it is much less likely to be an issue than the former
If the former it is much less likely to be an issue than the former
The vendor is the builder (developer) who bought the plot of the beneficiary of the covenant in 2006.
Its taken this long to get permissions and complete the build (yes, I Know!)
I am hoping the vendor still has some sway with the original owner of the land.
I will request the covenant is narrowed to something like :
‘not to make any alterations or additions directly visible from the current dwelling on the Transferor title .. without the approval of the Transferor or his successors…, not to be unreasonably with held’
otherwise, I may have to walk away.
My lady is very upset, as she wants the place, no matter what.
Its taken this long to get permissions and complete the build (yes, I Know!)
I am hoping the vendor still has some sway with the original owner of the land.
I will request the covenant is narrowed to something like :
‘not to make any alterations or additions directly visible from the current dwelling on the Transferor title .. without the approval of the Transferor or his successors…, not to be unreasonably with held’
otherwise, I may have to walk away.
My lady is very upset, as she wants the place, no matter what.
NicD said:
The vendor is the builder (developer) who bought the plot of the beneficiary of the covenant in 2006.
Its taken this long to get permissions and complete the build (yes, I Know!)
I am hoping the vendor still has some sway with the original owner of the land.
I will request the covenant is narrowed to something like :
‘not to make any alterations or additions directly visible from the current dwelling on the Transferor title .. without the approval of the Transferor or his successors…, not to be unreasonably with held’
otherwise, I may have to walk away.
My lady is very upset, as she wants the place, no matter what.
A couple of things.Its taken this long to get permissions and complete the build (yes, I Know!)
I am hoping the vendor still has some sway with the original owner of the land.
I will request the covenant is narrowed to something like :
‘not to make any alterations or additions directly visible from the current dwelling on the Transferor title .. without the approval of the Transferor or his successors…, not to be unreasonably with held’
otherwise, I may have to walk away.
My lady is very upset, as she wants the place, no matter what.
1. Tell SWMBO not to be daft (rephrase that appropriately, of course
)2. This sort of covenant was very commonplace in the days before planning legislation, because in those days the only way you could stop somebody building a hideous monstrosity, on the land next to your house that you just sold them, was to put a covenant like this into the conveyance. It is not impossible that the covenant has been "handed down" so to speak over many years.
I had exactly this problem when I wanted to put an extension on my house in 1985. The conveyance included a clause requiring me to get the permission of the owner of the adjoining farm (because the house was once a tied cottage to that farm). I was given two choices by my solicitor - get the agreement of the adjoining owner or take out indemnity insurance in case the owner or subsequent owner of the farm thought that they could make a few bob out of me through this covenant.
It may well be that you are stuck with this covenant so, if SWMBO is adamant that she wants it, you might end up with Hobson's choice.
A restrictive covenant can only be lifted by agreement with the original beneficiary.
I would ask the following:
1. Do they still exist?
2. Is their a 'successor in title' that would benefit from the covenant if they are no longer around?
3. Is the covenant still relevant?
A covenant is only enforceable if there is a beneficiary. That beneficiary is unlikely to enforce a covenant that is meaningless to them.
The original land owner clearly wanted to retain some control when he sold to the builder. Is that person still around and will they care about your extension?
I would ask the following:
1. Do they still exist?
2. Is their a 'successor in title' that would benefit from the covenant if they are no longer around?
3. Is the covenant still relevant?
A covenant is only enforceable if there is a beneficiary. That beneficiary is unlikely to enforce a covenant that is meaningless to them.
The original land owner clearly wanted to retain some control when he sold to the builder. Is that person still around and will they care about your extension?
I get what you are saying but this is relatively new, the section was subdivided in 2006.
the crazy thing is, the planning permission granted for the house removed permitted rights (AONB), so even to paint the bloody place, we need to apply for approval.
So, on top of that, the next door neighbour wants to approve any alterations. They want their cake and eat it.
None of this has been disclosed in the month of negotiation, though I did check the planning myself.
I have just checked Zoopla, nothing else attractive in the price bracket for 30 miles.
the crazy thing is, the planning permission granted for the house removed permitted rights (AONB), so even to paint the bloody place, we need to apply for approval.
So, on top of that, the next door neighbour wants to approve any alterations. They want their cake and eat it.
None of this has been disclosed in the month of negotiation, though I did check the planning myself.
I have just checked Zoopla, nothing else attractive in the price bracket for 30 miles.
Elysium said:
A restrictive covenant can only be lifted by agreement with the original beneficiary.
I would ask the following:
1. Do they still exist?
2. Is their a 'successor in title' that would benefit from the covenant if they are no longer around?
3. Is the covenant still relevant?
A covenant is only enforceable if there is a beneficiary. That beneficiary is unlikely to enforce a covenant that is meaningless to them.
that's covered, by 'successor in title' and in fact, I think the original beneficiary still lives next door, perhaps the vendor can re-negotiate.I would ask the following:
1. Do they still exist?
2. Is their a 'successor in title' that would benefit from the covenant if they are no longer around?
3. Is the covenant still relevant?
A covenant is only enforceable if there is a beneficiary. That beneficiary is unlikely to enforce a covenant that is meaningless to them.
NicD said:
I get what you are saying but this is relatively new, the section was subdivided in 2006.
the crazy thing is, the planning permission granted for the house removed permitted rights (AONB), so even to paint the bloody place, we need to apply for approval.
So, on top of that, the next door neighbour wants to approve any alterations. They want their cake and eat it.
None of this has been disclosed in the month of negotiation, though I did check the planning myself.
I have just checked Zoopla, nothing else attractive in the price bracket for 30 miles.
I guess the price reflects the state of affairs though. the crazy thing is, the planning permission granted for the house removed permitted rights (AONB), so even to paint the bloody place, we need to apply for approval.
So, on top of that, the next door neighbour wants to approve any alterations. They want their cake and eat it.
None of this has been disclosed in the month of negotiation, though I did check the planning myself.
I have just checked Zoopla, nothing else attractive in the price bracket for 30 miles.
Even if
Sounds horrible to be honest, like renting but with a mortgage.
yes, in practise, probably wouldn't be an issue, but, on the other hand, could be.
I cannot find a legal definition of an 'alteration', and I do not want the next door neighbour nosying around (we haven't met, they may be wonderful people, lets hope so).
A real quandary, as she (we) really want the place.
Lets see what this week brings.
I cannot find a legal definition of an 'alteration', and I do not want the next door neighbour nosying around (we haven't met, they may be wonderful people, lets hope so).
A real quandary, as she (we) really want the place.
Lets see what this week brings.
Wild left field idea here, if the house means that much, how about getting in direct contact with the beneficiary of the covenant and discussing your plans with them and getting prior approval, your purchase being conditional upon this?
Has worked for Client's of mine before now.
The point of these covenants is to retain some sort of control of what happens on site. As a developer they do not want the owners of Plot 1 making a load of God awful looking changes that the prospective buyers of Plot 134 have to drive by or dealing with amendement issues "They have this and so we want this is you want to sell us your plot". With people selling off part gardens for development on one or two houses the driver is to keep some form of control over what they are looking over, particularly important if you are selling but not moving...
Based on the reson for the imposition of the covenant you can see how best to approach removal (unlikely if Ben. was my client) or approval to alterations.
Simply put think about the impact of any changes you want to make upon the neighbour and then talk to them if you think reasonable. Imagine that you are overlooking your new property and you might get close to working out your chances. Old phrase applies, "If you think you are taking the piss, it is likely that you are."
Ejit fo spullin as auto check na workin
Has worked for Client's of mine before now.
The point of these covenants is to retain some sort of control of what happens on site. As a developer they do not want the owners of Plot 1 making a load of God awful looking changes that the prospective buyers of Plot 134 have to drive by or dealing with amendement issues "They have this and so we want this is you want to sell us your plot". With people selling off part gardens for development on one or two houses the driver is to keep some form of control over what they are looking over, particularly important if you are selling but not moving...
Based on the reson for the imposition of the covenant you can see how best to approach removal (unlikely if Ben. was my client) or approval to alterations.
Simply put think about the impact of any changes you want to make upon the neighbour and then talk to them if you think reasonable. Imagine that you are overlooking your new property and you might get close to working out your chances. Old phrase applies, "If you think you are taking the piss, it is likely that you are."
Ejit fo spullin as auto check na workin
Rude-boy said:
Wild left field idea here, if the house means that much, how about getting in direct contact with the beneficiary of the covenant and discussing your plans with them and getting prior approval, your purchase being conditional upon this?
Got to be careful here - if any approach is made, you remove the chance of getting restrictive covenant indemnity insurance. The covenant might only be 9 years old, but insurance might still be a worthwhile option.I'm selling a plot with the benefit of such a policy currently. The buyer wants to approach the beneficiary and ask for the covenant to be released, but doing that will invalidate the policy and prevent my client getting another one in future (making the plot unsaleable), so it's simply not an option to approach the beneficiary in my case.
Jobbo said:
Rude-boy said:
Wild left field idea here, if the house means that much, how about getting in direct contact with the beneficiary of the covenant and discussing your plans with them and getting prior approval, your purchase being conditional upon this?
Got to be careful here - if any approach is made, you remove the chance of getting restrictive covenant indemnity insurance. The covenant might only be 9 years old, but insurance might still be a worthwhile option.I'm selling a plot with the benefit of such a policy currently. The buyer wants to approach the beneficiary and ask for the covenant to be released, but doing that will invalidate the policy and prevent my client getting another one in future (making the plot unsaleable), so it's simply not an option to approach the beneficiary in my case.
I can see what you are selling here but on the facts presented here we have the developer who bought the Plot from the Ben. The house has only just been built so there will have been contact there and as it sounds like the house is less than 12 months old there is no possibility of IP for any existing breach as it will be less than 12 months old. Added to this it isn't a "Once we are offsite we don't care" developer type covenant but one for the benefit of a prior and existing adjoining owner and as such i would have expected the build, especially one as protracted as this appears to have been, to have been viewed with the eyes of a hawk.
OP should certainly ask their Conveyancer before doing anything – that is what they are paying them for 
In the case on your desk there is obviously a pre-existing breach that is over 12 month old and there is the policy in place. Question - has the breach been in existence for more than 20 years? Estoppel might be your friend here…
Jobbo said:
I can't go into great detail about the file I'm working on, but it's not a pre-existing breach. The covenant not to build dates from 1973, it's a bare plot and the policy was taken out pre-planning; planning consent has now been granted for a dwelling.
With you, yep pre planning is unusual for IP Co. to be prepared to issue on at a sensible rate so likely they think it's toffee, or peanuts to buy off if it does bite, anyway. Sounds like you have to go by the book on that one though without the passage of time on your hands. Recent CPD has highlighted how hard these things are to enforce, and the low level of damages awarded these days for breach. IIRC RC for 3 Dwellings, 5 built, damages about £2k - £3k per plot. Your no build would be higher as the above was on the basis that there were going to be houses there anyway, just the size and number were changed.
One thing is certain, we need to be a lot more cautious when drafting RC's these days and possibly consider alternative solutions to enforce no build. As a rule though I try to work on the basis of time limited RC's for alterations and so on as I have a personal issue with littering the title for generations. Imagine the fun that our successors are going to have when all these late '80's and '90's identikit s
tboxes start to fall apart...Rude-boy said:
One thing is certain, we need to be a lot more cautious when drafting RC's these days and possibly consider alternative solutions to enforce no build.
I'm with you there - but it might end up being protected like a positive covenant or overage, with a restriction on title and obligation to enter into a personal covenant. We don't want that messing up titles further.Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff