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Restrictive covenants on property

(12 Posts)
Mitzimaybe Tue 09-Jun-15 15:46:47

Wasn't sure whether to post in property/DIY but it's a legal issue, so here I am.

The house we are buying has a restrictive covenant, with a schedule containing lots of clauses. Some of the clauses seem reasonable - about access to drains and that kind of thing - but I'm a bit worried about others. For example: "No part of the land hereby transferred shall be used for any other purpose than that of a garden and private dwellinghouse and no trade business or profession shall be exercised or carried on upon the said land."

So does that mean I'm not allowed to work from home?

"No livestock other than not more than one dog and/or cat shall be kept on the land hereby transferred"

So does that mean I can't get two kittens as I was planning?

There's one about not doing anything that could diminish the value of the neighbouring properties. Could that mean we couldn't build an extension? (Not in our current plans, but you never know in future...)

The developer (limited company) was dissolved years ago, but presumably the neighbours will have similar covenants and so know about them, and it only takes one cat-hater to take umbrage at my moggies...

Should I be worried? How could the clauses be enforced? I.e. if I work from home, and someone takes legal action to enforce it, what could be the penalty for not obeying? Is there any way to get the covenant (or at least these clauses) removed from the property, or are they there forever?

Mintyy Tue 09-Jun-15 16:01:36

I should think those are exactly the type of questions you should be putting to your solicitor.

LIZS Tue 09-Jun-15 16:14:16

Many such become unenforceable over time. Is the covenant between the properties or the developer and each owner? Your solicitor should advise you.

Mitzimaybe Tue 09-Jun-15 16:35:48

My solicitor says it's all legally enforceable but highly unlikely that anyone would bother. That doesn't really help.

LIZS It says:

"The purchaser to the intent and so that this covenant shall be binding on the said land hereby transferred into whosesoever hands the same may come and so as to benefit the remainder of the land comprised in the title above referred to hereby covenants for himself and his successors in title with the Vendor and its successors in title that he the Purchaser and his successors in title will at all times hereafter observe and perform the restrictions stipulations obligations and conditions set forth in the Schedule hereto."

Mitzimaybe Tue 09-Jun-15 16:38:00

So it seems to me that the covenant is between the developer and the owner, but is for the benefit of the neighbouring properties, which would be the "remainder of the land comprised in the title above".

MrsBertMacklin Tue 09-Jun-15 16:40:24

If the developer is dissolved, their title has presumably been transferred to someone else, i.e. who are the restrictive covenants in favour of?

Just trying to work out if they are an 'active' company, or just there to collect ground rents / because they got stuck with the title.

Regarding the working from home thing, if you're working from home on behalf of an employer and are just sitting at a PC, you will be fine, if you're doing anything where you would have regular visitors co-workers etc. that would be considered trading business activity.

In short, these covenants will only be a problem if you breach them in a way that draws attention or causes nuisance for others. Working in your pyjamas at a computer or keeping two cats, highly unlikely to do that. Bringing commercial activity into a residential area or keeping hens in the garden, maybe a problem...

worridmum Tue 09-Jun-15 16:48:35

seems like a fairly tpyical conivent only thing really out of place there is limiting the animals to 1 dog and 1 cat which is totally unenforcable etc

the devaluing typically relates to doing stuff like planting massive trees to block neibours views and thus reducing their value etc which sadly is enforcable even if the company is long gone as the negibours can make a claim against you for it

and the work clause genrally means starting up a noisy trade business eg starting a car repair thing on your land etc which again is fairly standard for esates but I dont think it would cover working from home for none noticable things like regualr office work or accountcy etc just the noticable ones like car repair , child minding etc

MrsBertMacklin Tue 09-Jun-15 16:53:18

To answer your other question, if the other party decides you've broken the covenant, they will take enforcement action: rather than taking you straight to court for an injunction, the first sensible and typical course of action would be to write to you, notifying you that they are aware of an ongoing breach and giving you XX days to remedy it, i.e. stop breaking the covenant and no further action will be taken.

LotusLight Tue 09-Jun-15 20:42:06

I would say it depends what your working from home is whether neighbours cause problems. Eg if you have cars every hour arriving for appointments or you're repairing cars outside or have constant deliveries they will be straight on you for breach of covenant. If you're typing at home at a PC very unlikely anyone would object.

On the kittens unlikely anyone will notice.

Fleurchamp Tue 09-Jun-15 20:52:48

I would also question how long ago they were created. If more than about 20 years ago it's unlikely they will be enforced.

Developers put these covenants on the title to protect their investment whilst they sell off remaining plots / develop further phases. They rarely care once they have sold all of their land and it can be very expensive for them to enforce them.

LandRegRep1862 Wed 10-Jun-15 15:06:41

As others have mentioned such covenants are often put in place to 'protect' the developer's estate whilst they sell off the house plots so you often see ones restricting what you can add to the property, parking a caravan on the drive, putitng a For Sale sign up etc - they want new buyers to buy a plot as the developer envisaged it.

The developer then sels the plots and moves on so has no or little interest in what happens next.

However such covenants are usually imposed to restrict successors in title, as in this case. That means that when Plot 1 is sold the developer's remaining part of the estate has the benefit and as each Plot is sold that benefit passes to them also - restrictive covenants run with and bind the land. So in an estate of say 40 Plots you now have poitentially 40 landowners who are bound by the same covenants but who also have the benefit of them over the other 39 plots.

As others have posted most, but not all, owners are probably unaware of the covenants and you soon find that extensions are built, caravans parked and so on. Whether that lessens the risk of someone seeking to impose the covenant when breached is debateable but the risk is there and this is where your solicitor's advice comes in.

Attitudes have changed over the decades so for example in Victorian times you would often see covenants restricting you from the sale of alcohol, running the house as an asylum or keeping chickens (considered to carry disease). Nowadays it tends to be the working from home and keeping a caravan on the drive and the not keeping of livestock is a modern way of avoiding the 'Good Life' couple moving in and running a small holding which then puts of potential buyers. Limiting the number of cats and dogs is a rare one though but you can see the logic perhaps from the developer's perspective.

So, the covenants restrict your use of the land as the landowner. They are likely to benefit each of the plots on the estate and in return they are very likely to be bound by the same covenants. As such it is a question of weighing up the risks involved bearing in mind your solicitor's experience, what others may have or are doing on the development and then considering whether other factors about the house outweigh those considerations.

In my experience, from reading a variety of online forums around such things, the attitude tends to be not to worry. Where these covenants tend to come home to bite is where you have two parcels of land involved only as the covenants in those situations are likely to have been imposed for other and very specific reasons. It is your legal advice though that you should rely on.

Finally, such covenants can be removed if all the benefitting land owners agree to release them - never likely to happen on a large development. There is also a legal process whereby application can be made to the The Upper Tribunal (Lands Chamber) www.gov.uk/appeal-upper-tribunal-lands but this can be complex and therefore expensive and again unlikely to be something you would consider in this example

Mitzimaybe Fri 26-Jun-15 17:23:47

Thanks to everyone who answered and we've decided to take the risk.

MrsBert I don't see how a dissolved company's title can have been transferred to anyone else. There is no ground rent; it's a freehold property.

LandRegRep I did have one of those "no sales of alcohol" covenant on my previous Victorian house (Quaker-built estate.) Interesting to see that the clauses can be removed if the other householders (beneficiaries) agree - it's only a small estate (single figures) so it might be a possibility. I'll have to get to know them first - if they're all already breaching some of the terms then it might be possible.

The house we are buying was the first or second to be built and it's fairly obvious that most of the clauses were to protect the developer and make sure they could get a good price when they sold the rest.

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