When indemnity is the best policy for peace of mind
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.