<sigh> Restrictive Covenant on Forever Home

[sophienextdoor]

Wasn’t sure whether to post this on the legal section or here. Anyway, myself, DH and DD have found our forever home, a beautiful period villa in Southampton.

To cut a long story short the searches have returned a restrictive covenant which states.

“WITH the intent of binding himself and successors in title the Purchaser HEREBY COVENANTS with the vendor for the benefit if the land namely:

(iv) That he will not make or cause to be made any alterations to the existing dwellinghouse and buildings without the Vendors’ previous consent in writing and will pay the Vendors’ fee for approval of plans for such alterations.”

The covenant is dated 1979 and from what I can see the original vendor (a company) has now dissolved sometime in the 90’s.

I’m so confused!! Does this mean we cannot change anything inside the house?

We want to completely change the layout inside and need to move nearly all the walls, it will definitely require planning permission but we had already made considerations for that.

Feeling a little heartbroken and deflated with all this.

Can anyone offer any advice and confirm the covenant is as “literal” as it reads?? Or does anyone have experience with a similar issue?

*This is my first post, so Hi!

Hasn't your solicitor discussed it with you?

You need to speak to your solicitor regarding the restrictions, especially if it is unclear whose approval you need.

But

We want to completely change the layout inside and need to move nearly all the walls, it will definitely require planning permission but we had already made considerations for that

It doesn't actually sound like your perfect forever home - you're changing all elements of it! If you plan to do so much work, then I am sure you can find another home without the restrictive covenant which can be done to your requirements.

I am not that kind of lawyer but Google suggests that Veee Ltd vs Barnard (2018) is probably your friend. But you’d need your actual conveyancing solicitor to check in your specific circs.

Given the original vendor doesn’t exist anymore (if I’ve understood you correctly) is it worth asking your solicitor about indemnity insurance and then just going ahead with your plans?

You can have covenants removed if you ca prove they are no longer valid, which you can. Speak to your solicitor,

Without wishing to state the obvious, get a really good and experienced actual solicitor on this rather than a low fee conveyancing churn practice.

They don't seem to be able to provide us with a concrete answer to our specific concerns, they have offered advice that we can attempt to get this covenant removed at the Upper Tribuneral (Lands Chamber), but apparently this can be lengthy and costly.

Or that if we do make any alterations then we can take out indemnity insurance, but from what I've read online, the planning permission aspect might negate this option.

I just hoped I might be reading something wrong and this only applied to the exterior of the building, or it was something that solicitors make a faff over... but most people ignore if the original landowner is deceased or has ceased trading (in this case).

@AtillatheHun

Without wishing to state the obvious, get a really good and experienced actual solicitor on this rather than a low fee conveyancing churn practice.

I wondered if this was the issue too.

Yes, it’s lengthy and costly op to remove covenants. You can take indemnity insurance once the changes have been in place for a certain amount of time, but you may not be granted it in the first place.

Was this a result of a TP? (Transfer of Part?)
If so, who now owns the remaining land that belonged to the vendor?

As others say, find a solicitor with the right kind of experience, imaginative Googling might help.
Even if the company no longer exists the Covenant probably lives on. The phrase 'heirs and successors' come to mind in other situations.
It could be discovered at any time in the future, resurrected and enforced.
There was a case of a house, the owner of which was required to maintain the local church. Very costly.

I must agree, we are not very impressed with the firm we are using for our conveyancing, bad choice on our part.

I just wondered whether the part that reads:

"WITH the intent of binding himself and successors in title..."

means that potentially all we would need to do is ask the current vendor for permission to make the alterations - as opposed to the original landowner.

That's about the best I can think of at this stage, but both me and DH are not very experienced with the legality of property sales, this is our first purchase after renting until into our late 30's - so of course we don't want to get caught out. It's seeming like we'll have to pull out of this :(

I would take that as the person/company (whoever holds the covenant) needs to give their permission and there may be a fee payable for that. If you apply retrospectively, for example when you are selling the property and the changes are apparent, it will cost more than asking in advance. Or that was the way it worked when there was one on a house that we bought.

But you are not sure who holds the covenant at the moment? It may have been bought by another company.

Seymour Road v Williams may be helpful too. Where Covenantee has dissolved

But you need a good lawyer on this!

Have there been any alterations since it was built?

My house has a similar covenant/circumstance and I completely ignore it, as do neighbours.

I have a legal background but do not specialise in land law. I would take that covenant to mean that you would need permission from the original vendor in 1979 to make changes to the property. However, given that vendor no longer exists, assuming they didn't, as part of dissolving their company or otherwise, transfer the benefit of this covenant to a third party, who would their be to enforce any breach? We actually have a similar covenant on our property but from the 1920's. Again, we're breaching it regularly but who is going to enforce it now? Does the property look like it's been changed so far?

Very surprising your conveyancer isn't able to advise you properly on the consequences of purchasing with this covenant.

As I understand it, you can safely ignore this covenant. Such restrictions are a civil matter and can only be enforced by the party who "has the benefit of" the covenant. In this case, it's a company that no longer exists. The covenant is meaningless and of historical interest only.

I am not a lawyer, and this is not legal advice, but I wouldn't worry about this at all, personally.

I am a lawyer but not land law so this not advice but there is enough about the circumstances that indicate the covenant is null or can be challenged.

• covenantee doesn't exist anymore. Also who were they the developer? Neighbour? Local farm? That tells you a lot about their intentions and if they would still be applicable today

-where is the land that benefits?

• so who would enforce?
• why would they enforce?
• reasonableness test
• etc

But you need legal advice. Don't do a thing without it

I have a covenant on my land which the beneficiary was the owner of next door. The wording of the covenant was that it passes to the successor in title of next door.

Your solicitor should be able to advise whether that is the case, or if the covenant is to a named individual or firm. It sound like the latter, but you need your solicitor to be sure.

If the firm is dissolved then I'd take the risk personally, but factor in to the price of the property, and it will come up on resale, especially if you've made changes to the house. Keep all legal correspondence!

The covenant I have has an end-date (25 years). I think most should because they hang around and cause pain when no longer relevant.

They don't seem to be able to provide us with a concrete answer to our specific concerns

As PPs have said, that's why you need a proper solicitor on the job and not some "conveyancer" - they're just about okay for bog standard purchases but practically nothing else

If it helps OP the house we've bought had an extension built without approval via the covenant, the sellers indemnified it for us.(has all other planning permissions)
Does anyone know, re these covenants, we're apparently supposed to seek permission to cut the trees, surely this is only if we want to really lop them down and not just take a couple of meters off the top to tidy up (they are VERY high now) we're happy with the trees but surely don't need to seek permission to keep them maintained?

Ok, update on this.

Thanks for all your suggestions and advice, it seemed like a pretty mixed bag so we decided to instruct an established local firm who specialise in conveyancing.

I forwarded my concerns to one of their partners, near enough what I wrote in the original post, but with a full copy of the Register Title. And this was their response....

-------

"The company which has the benefit of the restrictive covenant has dissolved but the benefit of the covenant runs with the land so technically the current land owner – of the land benefitting from the covenant (possibly the neighbours) .

That he will not make or cause to be made any alterations to the existing dwellinghouse and buildings and not to erect or cause to be erected any building of any kind

I fear that your proposed works will be in breach of this covenant. You could obtain indemnity insurance which would protect against a claim but would need the sellers to confirm various assumptions which are included in a standard breach of restrictive covenant indemnity policy.

I hope that this helps but please let me know if you require further assistance.

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So we are basically no further forward. Where the solicitor says they fear that the works will be in breach of the covenant - that is what I feared too!!

What I wanted was some more specific advice, are they not supposed to find out who owns the covenant??? I thought this is what I was paying for.

I paid £320 for this small paragraph, have I been ripped off?

I live (in Southampton) in an area with covenants. It doesn't seem to stop people applying for and getting planning permission to totally change their houses.

You can find the land owner out for yourself by looking on the land registry and paying a small fee (£3 I think?).

Slightly off topic but do you planning permission to change the inside?
Wouldn’t that be building regs approval instead?