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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9324
Experience:  I have been practising for 30 years.
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There is a 21 year covenant on the freehold land surrounding

Customer Question

there is a 21 year covenant on the freehold land surrounding our property to provide a garden for a block of leasehold flats opposite us. The covenant is up next year and I was wondering what happens from there as I would actually like to purchasr this land for my own use...can it be done?
Submitted: 12 months ago.
Category: Law
Customer: replied 12 months ago.
The original builder who owns the freehold land has disappeared, nobody from the flats uses it much and I would like to try and buy it back if possible. But I am concerned that the covenant may not be changed and likely to roll on for another 21 years indefinitely
Expert:  F E Smith replied 12 months ago.

Can we have the exact wording of the covenant or better still, can you attach the deed with the covenant in?

Customer: replied 12 months ago.
I will have to dig it out of the loft but I should be able to scan the relevant wording on or type it up for you within the next hour
Customer: replied 12 months ago.
Sorry for the delay I will try and pick out the salient bits Transferor (builder) Transferee (original owner) Amenity land is the garden area on three sides of our property (17&18 Apsley Court) these two properties and the amenity land are freehold. The flats and carpark are leasehold. According to LR the builder retained amenity land to providie a communal garden for the flat tenants and us. It appears the builder transferred the amenity land to the Transferee (us) to hold subject to the right granted to each of the flat tenants to use as their communal garden under their individual leases. The restrictive covenant on the amenity land is for 21 years (according to the individual tenant leases)(I do not have copies of those)....What I need to know is did the builder transfer the amenity land to us and what happens when the 21 years is up the restrictive covenant on the amenity land is vague and does it mean that whoever owns that amenity land do they have to provide a garden for the flat tenants permanently or does the land revert back to us.I apologise in advance for not being able to highlight the attached documents.Many thanks for your assistance if you would like to discuss you can contact me on 01296-334989James
Expert:  F E Smith replied 12 months ago.

I have the land Registry title for*****and I have the original transfer of*****which is presumably your property.

On the black-and-white plan, I can’t see the extent of the land of 17

I don’t appear to have the title of the land surrounding so can’t see the covenant on it or see who owns it and don’t know whether it is part of your title and the title for 18.

Do you have the title plan for 17?

Customer: replied 12 months ago.
The covenants and land registry docs I sent are exactly the same for 17 and 18 (I actually live in 18) what happened was the builder purchased the whole plot of land. The Amentity land and our two houses were kept as freehold. He then built 16 flats and the car park, which are leasehold (99 years I think) and as a concession the land on the three sides of our houses was placed under a covenant for the benefit and use of the flats and us if we wished to use it. The flat residents pay for the upkeep of the amenity land. 17&18 are shown as a square block and the amenity land goes down the side of both houses and right across the back....the land to the side of no 18 is slightly larger.Does that help any?
Expert:  F E Smith replied 12 months ago.

So who is the owner of the land you wish to purchase? The builder or is it in your title or someone elses?

Customer: replied 12 months ago.
The builder retained ownership of the amenity land and set up the covenant for the flats to have use of it... but the flat tenants/owners only have right of use nothing else. According to the deed I sent you the builder transfered the amenity land to the owners of 17&*****to hold subject to the right contained in each flat owners lease, which is only right of use of the amenity land...they do not have any ownership of that piece of land. It is either owned by the builder or he has technically transferred ownership of the amenity land to us. But we do not know for sure because of the loose wording in the deeds and the 21 year covenant is reached next year so we need to find out what our options are.Namely who does the land go to and if not us can we buy it and how would this covenant affect us i.e would we have to offer garden facilities for the flat owners indefinitely or can we end this arrangement?We do not know if the original builder is still alive. But the land either belongs to him or passes to usI am sorry for the massive headache I have given you because it is very messy and I need to find out what our options are before next year.Thanks for your help and patienceJames
Expert:  F E Smith replied 12 months ago.

Thank you. However, I still don’t know now owns the land.

There is a transfer of part but that’s with regard to 17, not this other land .

Do you have the land registry deed of the other land? That will say who owns it and it was say who you need to approach.

I can then tell you how to deal with the covenant.

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 12 months ago.
Thank you for your time I only provided the info for 17 because mine for no 18 are tucked away where I can't get at them readily but they both mirror each other....all we know is the builder portioned the land off he kept the part for our two houses and the amenity land surrounding it freehold.The rest was turned leasehold for the carpark and the flats the builder was registered as the transferor aka Kyle Mckenzie limited and I don't think another land registry deed exists for the amenity land as the builder used to live briefly in the houses before they were sold on and we cannot track him down.I can try the land registry tomorrow but we had little luck when we tried about 6 years ago.I will get back to you as soon as I can find anything else out.I will take the time out to thank you for all the help you have provided so far its been great.
Expert:  F E Smith replied 12 months ago.

Let me tell you how to try to get the information from the land Registry. If the land has no address you need to do a search of the index map.

complete the above firm and send it to the land Registry. It is free of charge. You need to attach a plan and I suggest that you use a copy of the plan for number 17 but on the plan, edge the area that you are interested in red. That will then be referred to in box 6 “edged red”.

You cannot use Google Earth plans, only the survey-based plans which is why I suggest using the land Registry title plan for your property which is immediately adjacent.

The land registry will come back to you with a title number and when you have the title number you can then get the title deed from the land Registry, online, for £3 using this link!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

With regard to the covenant, it is likely that you are going to have to wait the 21 years before you could do anything with the land except by it and hang onto it. That is unless whoever has the benefit of the covenant (the leaseholders?) would agree to release it for a fee. There is no set fee, it’s literally how much they could get away with. It does not keep rolling over after the initial period.

Customer: replied 12 months ago.
Morning,The amenity land is registered to Kyle Mckenzie limited (builder) unfortunately the builder was declared insolvent in 1999 and there is no forwarding or contact I do not know where to go from there with regards ***** ***** the land.Most of the leaseholders would probably be ok but I know of at least three who will never agree to release it because they think they own it. So there is no hope on that front.So what happens when the covenant runs out in November 2017?
Expert:  F E Smith replied 12 months ago.

That is the document which is the most useful. The restrictive covenant you are referring to is on page 8 at clause (f).

The only reference to 21 years in this document is in respect of rights and reservations, not in respect of restrictive covenants. Getting this covenant lifted is going to be more problematical than at first thought if the residents will not unanimously agree for it to be sold.

If the builders were dissolved in 1999 which is the situation shown on the companies house website, then you would be dealing with the Treasury Solicitor under the Bona Vacantia whereby any property which was not dealt with by the liquidator, passes to the Crown. Unless you have experience of dealing with the Treasury solicitor, you would be better off getting a solicitor to deal with the Department.

There are charges against the title which may or may not have been discharged.

Customer: replied 12 months ago.
Thank you for your time and diligence,I originally thought it was 21 years on all of them but obviously not. The three people I previously mentioned would object very strenuously to any form of sale and they are pretty much like the klu klux clan with the other leaseholders so that will never happen.If the covenants have no expiry date then that will pretty much bring the matter to a close and there will be no point in pursuing this with the Treasury Solicitor.the fact that there are still charges against the title comes as no surprise because the way this piece of land was developed and the flaws in the actual planning permissions amongst other things means I am just going to have to live with it.In closing I would like to say that I am really pleased the service you offer I think it really is great especially when you work in London 5 days a week and time is a problem. You have provided a very prompt response in a very rapid space of time, which has been very cost effective. When I tried to look into this about 6 years ago it took ages and I ended up having to let things go because the leaseholders and the development management were decidedly difficult and unco-operative and the cost was just not worth it.Thank you very much for all your help...I don't know what you do about closing this question and billing me but I think there is little point in pursuing the matter further but at least I have some peace of mind now.Best regardsJames
Expert:  F E Smith replied 12 months ago.

Thank you for those kind words. That is encouraging. You’ve paid fee and who rated the service positively so that’s the end of it. The thread will remain open if you want to look over it again. There’s no need to reply as a matter of course.

If you would like me to deal with any legal problems that you have in the future, personally for you, please put my name at the top of the question, For FES and I will deal with it myself.

Best wishes.