What lurks in the small print

Prop­erty deeds can con­tain all sorts of cu­ri­ous and cum­ber­some clauses. An­drea Marechal Wat­son finds some of the odd­est

The Daily Telegraph - Property - - Front Page -

Ame­dieval lord en­joyed all sorts of priv­i­leges over the peo­ple who lived on his es­tates, among them rights over fish­ing, hunt­ing and min­ing. We might as­sume all these feu­dal ties had van­ished by the 21st cen­tury, but not so. Strange deeds sur­vive to this day.

Re­stric­tions on what you can and can’t do in your own home some­times lurk at the back of ti­tle deeds and come to light only when a prop­erty is sold. These covenants are usu­ally neg­a­tive, reg­u­lat­ing an­ti­quated ac­tiv­i­ties such as mak­ing bricks, op­er­at­ing a steam en­gine, keep­ing goats and pigs, run­ning a leather tan­ning fac­tory, and us­ing the premises for “im­moral pur­poses”. In new, high-end gated devel­op­ments, more mod­ern prob­lems are ad­dressed: you might not be al­lowed to ad­ver­tise your trade, hang out wash­ing, put flow­er­pots on the win­dow sills or park your beloved car­a­van on the drive.

His­tor­i­cal rights over your prop­erty may be en­joyed by a lo­cal church or an­cient manor. If you live near a church you could be hit with a bill known as a Chan­cel Re­pair Li­a­bil­ity, and so­lic­i­tors of­ten ad­vise you to in­sure against this. Since Oc­to­ber 2013, mano­rial rights can no longer be reg­is­tered, but this dead­line to lodge claims led to some strange cases. Home­own­ers in Solva, a vil­lage in Pem­brokeshire, re­ceived let­ters say­ing that Doreen Bowie, who bought the ti­tle Lord of the Manor of Dewis­land in 1987, was claim­ing the rights to the min­er­als un­der their prop­er­ties (giv­ing a whole new mean­ing to the phrase “be­ing un­der­mined”).

Covenants such as these of­ten date from the break-up of great es­tates. A free­holder in the Wir­ral found she was not al­lowed to make soap or can­dles on the premises be­cause the land on which her home was built had once be­longed to the Sun­light Soap baron Lord Lev­er­hulme.

The Althorp Es­tate in Northamp­ton­shire is an­other that has spe­cific rules for its home­own­ers. Lo­cal es­tate agent Richard Greener lived in a cot­tage on the es­tate and worked as a manag­ing agent for its owner, Lord Spencer, fa­ther of Diana, Princess of Wales. “Among the covenants on prop­erty sales there was one pro­hibit­ing the plant­ing of bras­si­cas in the gar­den, and an­other pre­vent­ing the keep­ing of a gun or ‘noise ma­chine’ as well as car­a­vans.”

It’s not un­com­mon for clauses to verge on the bizarre. Greener re­calls sell­ing a prop­erty near Northamp­ton where the owner has to pay £10 a year to the “poor” of Boughton vil­lage. Pam Ersk­ine, who lives in a thatched cot­tage in Sur­rey that once be­longed to WE Johns and was where he wrote the first of his fa­mous Big­gles books, is obliged by her ti­tle deeds to keep a set of the ad­ven­ture sto­ries in the house. And there’s the case, as told by James Wy­att of es­tate agency Bar­ton Wy­att, of the Sur­rey land­lord who, in lieu of charg­ing a pep­per­corn ground rent, de­mands 100 red roses a year (which he then gives to his wife).

Some covenants are so old that they are un­en­force­able. A £3.3mil­lion house in Coney­hurst, West Sus­sex, has deeds stat­ing that part of it is free­hold and an­other part lease­hold, with the lease­hold por­tion be­ing for a “term of 10,000 years from the Feast of St Michael the Ar­changel 1580”.

“No one knows which part is lease­hold, or why,” says its agent, Mark McAn­drew of Strutt & Parker. “There are, how­ever, a few thou­sand years left to solve the mys­tery.”

Spencer Cush­ing of Ab­botts es­tate agency is mar­ket­ing a house where the Queen can claim a stake if you de­velop on the site. White­gates, a £450,000 house in King’s Lynn that borders San­dring­ham, has an over­age agree­ment on part of its gar­den that dates to when the Crown Es­tate sold the land. “The San­dring­ham Es­tate is en­ti­tled to up to 50 per cent (sub­ject to ne­go­ti­a­tion) of any devel­op­ment profit made on the en­tire plot,” says Cush­ing.

These so-called “hope” clauses or over­age agree­ments are in­creas­ingly com­mon thanks to the rock­et­ing price of land. They arise when some­one sells an op­tion on part of their land to a de­vel­oper. If plan­ning per­mis­sion is ob­tained, the owner shares in the in­creased value. Mary Gold, a writer, only dis­cov­ered that her hus­band had agreed a hope clause on a three-acre field at their prop­erty in Kent when she came to sell af­ter his death. She

In lieu of ground rent, a Sur­rey land­lord de­mands 100 roses each year

was forced to pay the de­vel­oper, who had taken the op­tion, £34,000 to re­lin­quish his rights.

Es­tate agents and so­lic­i­tors should spot any cu­ri­ous covenants, as they can af­fect the value of a prop­erty. In a Sur­rey house that has been split down the mid­dle into two units, the own­ers have agreed to of­fer each other first re­fusal if they sell – but this could af­fect the value go­ing for­ward, as the clause is with­out end.

An agri­cul­tural tie, mean­ing a prop­erty can only be lived in by a farm­worker, can also de­press the value of a prop­erty, but they can be re­moved if no one has lived there for 10 years. Hill Farm in Barnardis­ton, Suf­folk, on the mar­ket for £4.815mil­lion with Ch­effins, comes with a three-bed­room de­tached barn con­ver­sion that has an agri­cul­tural tie on it. The agent is there­fore of­fer­ing to sell the prop­erty in sep­a­rate lots, as the main farm­house has no re­stric­tions.

Search­ing for these covenants be­fore pur­chas­ing a home can be a chore. Take Glebe House, a for­mer rec­tory near Ex­eter listed with Jack­son-Stops & Staff for £1.25mil­lion, which has a re­cip­ro­cal covenant with its neigh­bour. The clunky clause in the con­tract reads: “Not at any time to do or cause per­mit or suf­fer to be done on or in the Prop­erty any­thing which may be or be­come a nui­sance, an­noy­ance, dan­ger or be detri­men­tal to the Ad­join­ing Prop­erty” – typ­i­cal of the Dick­en­sian lan­guage that can cloud the is­sue in mat­ters such as these.

But find­ing re­stric­tive agree­ments be­fore hand­ing over your de­posit could pre­vent a nasty sur­prise fur­ther down the line. Grade II listed The Manor, near Beamin­ster in Dorset, is on the mar­ket for £2.1mil­lion with Jack­sonS­tops & Staff. It might catch the eye of a buyer look­ing to start a wed­ding busi­ness, as the 20-acre es­tate comes with a church, but there’s a catch: it can only be used for eight ser­vices per year.

Black Horse Cot­tage, a 15th-cen­tury house near Cam­bridge for sale with Ch­effins for £650,000, used to be run as a pub. When the pub­li­can went bank­rupt in 1850, a re­stric­tive covenant was placed on the prop­erty for­bid­ding the sale of any “in­tox­i­cat­ing bev­er­ages in­clud­ing perry and cider”. It’s a sober­ing thought for any would-be buyer, and serves a strong re­minder of the need to scour ti­tle deeds for any lurk­ing nas­ties. Af­ter all, you never know when you might want to launch a soap-mak­ing em­pire or a mini brew­ery from your kitchen table.

Let­ter of the law: Pam Ersk­ine, left, must keep a set of Big­gles books in her house; Glebe House, right

Small print: part of this house in Coney­hurst, West Sus­sex, has a lease­hold (but no one knows which), cover and main; Glebe House, above, has a re­cip­ro­cal covenant with its neigh­bour

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