When in­dem­nity is the best pol­icy for peace of mind

Yorkshire Post - Property - - PROPERTY - John Rob­son

Q I am look­ing to buy a semide­tached prop­erty in north Leeds.

An is­sue has arisen re­lat­ing to the con­ser­va­tory con­structed at the rear of the prop­erty about four years ago.

The house was built in 1986. The trans­fer deed re­lat­ing to the sale by the de­vel­oper to the first owner con­tains re­stric­tive covenants. I am ad­vised by my con­veyancer that these covenants re­main in force and con­tinue to af­fect the prop­erty.

One of the covenants states that any ex­ten­sion con­structed re­quires the con­sent of the orig­i­nal de­vel­oper for which they are en­ti­tled to charge a fee.

It tran­spires that the con­sent of the de­vel­oper was not sought in re­spect of the con­ser­va­tory. I am be­ing asked to pay for an in­dem­nity pol­icy which at­tracts a pre­mium of £185.

Is it cor­rect the covenant is still rel­e­vant and, if so, why should I pay a pre­mium for the fact the cur­rent own­ers failed to ob­tain con­sent? A Re­stric­tive covenants are im­posed for the ben­e­fit and pro­tec­tion of the re­main­ing land in the ti­tle deeds when part is sold off.

For ex­am­ple, on a new devel­op­ment, the covenants are for the ben­e­fit of the de­vel­oper owner who may still own ad­ja­cent prop­er­ties not yet sold.

If the first owner of a prop­erty erects an ex­ten­sion which is out of char­ac­ter, it could, firstly, af­fect the plan­ning con­di­tions gov­ern­ing the devel­op­ment and, se­condly, the saleabil­ity of the ad­ja­cent houses.

It fol­lows that re­stric­tive covenants pro­vide a de­gree of con­trol in favour of the de­vel­oper over ex­ten­sions to houses long since sold.

The trans­fer deed sell­ing off the prop­erty should con­tain a clause im­pos­ing the covenant for the ben­e­fit and pro­tec­tion of the re­main­der of the ti­tle and bind­ing all sub­se­quent own­ers of the prop­erty.

This is a pos­i­tive covenant and one that can be en­forced by the own­ers of the ad­ja­cent houses.

Even if the orig­i­nal de­vel­oper com­pany is no longer in ex­is­tence, the covenant still has rel­e­vance if the ad­join­ing own­ers con­sider the breach to have an ad­verse ef­fect on their prop­erty.

There are two op­tions to deal with this sit­u­a­tion. The first is to ap­proach the de­vel­oper, as­sum­ing the com­pany is still in ex­is­tence, and to ap­ply for a Ret­ro­spec­tive Con­sent.

The de­vel­oper will cer­tainly seek to charge a fee to sup­ply such con­sent and will im­pose a con­di­tion that any rel­e­vant plan­ning per­mis­sion and/ or build­ing reg­u­la­tion ap­proval was ob­tained.

The sec­ond, and by the far the quick­est so­lu­tion, is to pur­chase a ti­tle in­dem­nity pol­icy. How­ever, it is rea­son­able to request the seller of the prop­erty to pay the pol­icy pre­mium or at least a pro­por­tion of it.

Plan­ning per­mis­sion would not nor­mally be re­quired if the con­ser­va­tory is of a stan­dard size and the only ex­ten­sion as it would fall within the per­mit­ted devel­op­ment cri­te­ria.

If there is a solid door be­tween the house and con­ser­va­tory, then it should be ex­empt from build­ing reg­u­la­tion ap­proval.

John Rob­son, res­i­den­tial con­veyanc­ing man­ager at Ford & War­ren, Leeds.

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