House purchase - negative covenant

[NicD]

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

[NicD]

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.

[NicD]

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.

[NicD]

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.

[NicD]

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.

[NicD]

Guys,

great minds and all.

I have drafted a letter direct to the neighbours to establish rapport and put the proposal across.

When we buy the house, there can be no breach since the first part of the covenant is to build to the specified planning application.
That has happened, no question.

Breaches could happen only after we purchase.

Any case law on what constitutes 'alterations'?

Best
Nic

[NicD]

Rude-boy said:

The answer you are after is now far too Client based to answer on a forum.

For the case law. Seriously? 30 seconds on Google on a tablet using nothing but your words gives you the legal definition.

What do you mean by 'Client based' and please post your 30 seconds of 'research' on 'alteration' please, lets see how useful it is. My searches resulted mainly in leasehold cases, or additions.

Just to bring up to date, the agent and seller has accepted the point and is investigating a deed of variation. I have not got hopes up, but you never know.

I have drafted a letter direct to the neighbour, but holding back for some of the reasons mentioned above.

Note that the covenant is an issue only going forward, as the first part of it mandates the property is built as per a specific planning application, which it is, as it is adjacent to an AONB.

Edited by NicD on Thursday 23 April 06:18

[NicD]

OK, just to bring up to date.
The beneficiaries (neighbours) turn out to be very reasonable and after I paid for their solicitors, have signed an acceptable Deed of Variation.
They emailed me last Saturday morning to say they had signed, but after two working days, their firm denied all knowledge!
Now, it appears that have located it, but it missed the DX, so will arrive at my conveyancer maybe today or Monday.

Still, good progress to getting into my huge garage/ under build . Hope to exchange soon.