How re­stric­tive covenants can af­fect the sale of your home

Yorkshire Post - Property - - PROPERTY - John Rob­son

A: A RE­STRIC­TIVE covenant is a le­gal obli­ga­tion and agree­ment whereby the buyer agrees with the seller, at the time the covenant was im­posed upon and to bind the land by deed, to re­frain from do­ing some­thing or to do some­thing. The lat­ter is a pos­i­tive covenant.

Shortly af­ter the end of the Sec­ond World War leg­is­la­tion was in­tro­duced, now known as the Town and Coun­try Plan­ning Act 1990.

The im­ple­men­ta­tion of the Act serves to con­trol devel­op­ment so that any pro­posed ex­ten­sion, be­yond per­mit­ted devel­op­ment rights, will re­quire plan­ning per­mis­sion. Pre-war re­stric­tive covenants were widely used as such plan­ning con­trols did not ex­ist.

How­ever, re­stric­tive covenants are al­ways used when cre­at­ing deeds sell­ing new houses of plots, en­abling the owner of the re­tained land to have the ben­e­fit of greater pro­tec­tive mea­sures over and above any plan­ning re­quire­ment.

When the 1935 con­veyance deed of your house was cre­ated if the word­ing im­pos­ing the re­stric­tive covenant states it is “for the ben­e­fit and pro­tec­tion of the sellers re­tained land” and also “the buyer for them­selves and their suc­ces­sors in ti­tle covenant so as to pro­tect the ad­join­ing land” then the covenant is en­force­able. This means the ben­e­fit trans­fers to the own­ers of the ad­join­ing houses. How­ever, a test of rea­son­able­ness will usu­ally ap­ply in th­ese cir­cum­stances. For ex­am­ple does the ex­ten­sion im­pact on any ad­join­ing houses in any­way, such as block­ing light or pri­vacy and have any other prop­er­ties on the es­tate been ex­tended in a sim­i­lar man­ner?

Covenants can be var­ied by agree­ment be­tween the land owner hav­ing the ben­e­fit of it and the land owner bound by it. The Lands Tri­bunal also have the power to mod­ify or dis­charge a covenant un­der sec­tion 84(1) of The Law of Prop­erty Act 1925. The ju­ris­dic­tion ap­pli­ca­ble to re­stric­tive covenants re­quire reg­is­tra­tion at Land Reg­istry.

The fact the ex­ten­sion to your prop­erty has been in situ for such a long time does pro­vide you with a de­gree of com­fort. How­ever, in law, ten years is an in­suf­fi­cient pe­riod of time to pro­vide a con­crete de­fence to breach of covenant. In th­ese cir­cum­stances a pe­riod of 25 years is re­quired.

Ti­tle in­dem­nity in­surance is the quick fix and rel­a­tively in­ex­pen­sive so­lu­tion to the prob­lem. There are a num­ber of in­surance com­pa­nies in the mar­ket pro­vid­ing this type of cover and at roughly the same pre­mium which is cal­cu­lated on the value of your home, not the added value of the ex­ten­sion.

To ob­tain in­surance you will be re­quired to con­firm the ex­ten­sion is over 12 months old and there have been no ob­jec­tions raised against it by any ad­join­ing own­ers.

To com­ply with the FSA re­quire­ments, a De­mands and Needs State­ment will be is­sued by the in­surer.

John Rob­son is res­i­den­tial con­veyanc­ing man­ager at Ford & War­ren So­lic­i­tors, Leeds

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