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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10527
Experience:  Barrister 17 years experience
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Sir-A Cottage was built on a site with 2 other properties A

Customer Question

Sir-A Cottage was built on a site with 2 other properties A covenant was made by the owners jointly and severally for themselves and their successors in title that any dwelling erected i.e. the cottage in pursuance of the consent issued under the application dated the10th day of Oct. 1979 shall not be sold or assigned except as one parcel with the land and buildings shown edged in red. Question- the other 2 properties on site are now up for sale-the Cottage is not-can this happen???
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
Should have read "with 2 other existing properties"
Expert:  Buachaill replied 1 year ago.
1. No, this can not happen. It is a clear breach of the restrictive covenant and this breach can be prevented by the former owners seeking to enforce it in court. Be aware that anyone buying on of the 2 other existing properties runs the risk of being unable to occupy what they have bought if the restrictive covenant is enforced. So, it is highly hazardous to purchase one of these two existing properties. This is because this breach of the restrictive covenant can be policed and enforced for up to 20 years into the future.
Expert:  Buachaill replied 1 year ago.
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Customer: replied 1 year ago.
Sir- Thank you for your answer to my restrictive covenant question. Is it only enforceable by the previous owners??
Expert:  Buachaill replied 1 year ago.
3. Yes, the covenant is only enforced by the persons in whose favour it runs. This means that the original owners or their successors in title, if someone bought that piece of land, can enforce the covenant. The covenant is not enforceable by the world at large. It is only the person who holds the benefit of the covenant who can enforce it. So this prevents some third party from coming along and seek to enforce it.
Customer: replied 1 year ago.
Sir, Yes the current owners are selling 2 of the properties but not the 3rd property I. e. the Cottage so it can happen!! N.B. the former owners do not object to the sale of 2 of the properties,and the existing owners therefore can go ahead with the 2 property sale regardless of the restrictive covenant.
Expert:  Buachaill replied 1 year ago.
4. If the holders of the restrictive covenant don't seek to enforce the covenant, then there is no issue arising. A downside only arises if the holders of the restrictive covenant sell their interest to someone else who takes a different view.

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