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Joshua
Joshua, Lawyer
Category: Law
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Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I bought some garden land from a neighbour 35 years ago without

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I bought some garden land from a neighbour 35 years ago without realising that there was a restricted covenant on it. 12 years ago my other neighbour and I built 2 houses partly on the restricted covenant land and only found out about the problem after constuction was commenced. Construction started 04/2003 and we moved in on 12/2003.
My question is whether the 12 years limitation act is likely to apply or not
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I confirm the land is freehold as opposed to leasehold please - I would assume it is but I ask for the avoidance of any doubt.
Has any third party sought to enforce the covenant(s) to date?
Customer: replied 2 years ago.

Hello Joshua. Yes, the land is freehold and nobody has sought to enforce the covenant.

Graham

Expert:  Joshua replied 2 years ago.
Thank you. Although 12 years is often cited as the magic timeline after which no action can be taken there is no statutory authority for this in the Limitation Act. However the law of equity (which is a doctrine the courts will use to make judgements on questions of "justice" or "fairness") has held that equity tends to follow the 12 year rule applied by the Limitation Act for enforcing breach of contract made under a Deed. Accordingly the person with the benefit of the covenant would likely find it difficult to apply for an injunction in respect of the building works you have carried out in breach of the covenant after 12 years however there is no absolute authority for this so it cannot be absolutely relied upon. There is a precedent in the form of Hepworth v Pickles which decided that a covenant that has been breached continuously for 20 years or more is no longer enforceable by the covenantee. Therefore, the position is that after 12 years, the covenantee would find it increasingly more difficult to enforce the covenant against you and the courts would be increasingly unwilling to support any application for breach of covenant after 12 years at there is no absolute line at this point whereby the covenant is absolutely unenforceable. An assessment of the conduct of the party bringing the claim would be made by the court. After 20 years, under the rule in Hepworth v Pickes, it is commonly accepted that a covenant is no longer enforceable. you may wish to look at obtaining legal indemnity insurance to give yourself reassurance in this respect. Legal indemnity insurance is a insurance policy you can obtain for a one-off premium which will ensure you against any loss you suffer should any third party bring a claim for breach of covenant. If you attempt to sell the property before 20 years has expired following construction, it is likely that the buyers solicitor would insist on such an indemnity policy anyway and there is nothing preventing you taking without at any stage now to protect yourself as well. . The premiums are not unreasonable - usually in the low to mid hundreds depending upon the value of your property. there are many insurance companies that offer such insurance-below is a small selection. I believe most companies require you to obtain the insurance through a solicitor though I'm not sure if all of them insist upon this requirement and you can contact while to to see if you can obtain a policy without instructing a solicitor. If you find you have to instruct a policy, I would not think the fees would be terribly high as a solicitor needs to do almost no work to obtain the policy http://www.gcs-title.co.uk/http://www.clsl.co.uk/find-out-more/conveysure/http://www.cli.co.uk/http://www.firsttitle.eu/ I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Customer: replied 2 years ago.

Thank you Joshua. We did take out indemnity insurance as soon as we became aware of the problem.

You were a big help

Graham

Expert:  Joshua replied 2 years ago.
Thats great in that case financially you should have little to worry about as insurance policy will normally cover legal fees associated with defending any claim and the cost of damages should any be awarded (it is not possible at this stage to require the buildings are removed) - but as above, though we cannot say that a claim is impossible at this stage, it certainly is unlikely because if the individual sought legal advice as to enforcing the covenant, he would be told that such a claim would be extremely challenging at this stage, and he would need to be able to show that he could not have discovered breach of covenant until recently was the mother reason to justify why he has been so slow at enforcing the covenant. Given the nature of the development, I assume it is entirely obvious from looking at the land and accordingly, I cannot see that he would be able to satisfy the tests the court would lay down.You may just want to check the financial limit of the policy in case your property has increased beyond that since the time you took it out. if it is under the present value of the property, you may wish to contact the insurer to top up the policy limit for a small top up premium fee.I am glad I was of assistance.

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