Who has the benefit of the restrictive covenant?
How does the previous owner know about this?
Is it in the deeds to the property?
Will you ever has the benefit of the covenant object to what you are doing?
How old is the covenant?
If you could let me have the background detail, it would be helpful.
You say that you bought the house and the land using 2 different solicitors and that you knew about the covenant on the house but not on the land.
The deeds of the land to see whether there is a restriction in place on the land because, just because it’s on the house does not necessarily mean it is on the land.
If it is on the land you potentially have a claim against the solicitor the solicitor did not advise you of this
The limitation period to bring a claim in negligence or breach of contract against the solicitor is 6 years from the negligent act or 6 years from the date of knowledge if that’s later subject to a long stop date after which you can’t bring any action regardless, of 15 years.
If this were to go to court, the first matter To be decided will be whether the negligent solicitor, if he has been negligent, can rely on the statute of limitation.
We don’t know who has the benefit of the covenant and if it has been around for a long time, that person may no longer be around. It may be the land was part of the neighbouring land and the covenant was placed on by the neighbour at the time in which case, the new neighbour would seek to enforce the covenant.
A restrictive covenant must be no more than is required protect the neighbouring land with the benefit of the covenant and in this case, that is probably satisfied.
Before a restrictive covenant is no longer enforceable, it has to be breached continually for 20 years without objection.
What does not help anyone who has the benefit of the covenant is if they have stood by and watched you run this even if less than 20 years, and they have let you apply for planning permission and incur costs without doing anything. That could be deemed to be acquiescence you are doing.
You ask whether you would be able to sue the lawyer and the lawyer has been negligent and they have partly answered that for you. The other issue is the amount of loss and whether the loss would be reasonably foreseeable. If you told the solicitor what you intended to do with the land orthat you were just going to do something commercially, then you havea good claim for everything this has cost you potentially including the purchase price of the land or if it’s no use to you now, and you have to sell it and sell it at a loss, any loss in value.
If you can attach the land registry title deed to the land, I can have a look at it for you.
Can I clarify anything else for you?
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We can still exchange emails.
I’m sorry for the delay. I have clients all day.
Unless you have experience of suing solicitors for professional negligence, you might want to see another solicitor. Solicitors love suing each other!
You would start by sending a pre-action protocol letter of claim indicating exactly what the problem is and your loss and asking for their comments and reply and inviting them to make an offer within a period of time.
If they come back and deny liability, then you have to issue court proceedings. They would then probably pass it on to their insurer to try to agree a settlement or to defend your claim.
You do need to check the title deed to the field to make sure that the restriction is on it. Just because it’s on the house doesn’t mean it will not also be on the field.
The reason it may not be on the field is that it’s very difficult to use a field for anything other than a commercial use because even grazing cattle or sheep or horses is a commercial use if it’s being done as part of a farming business.
You can quantify what it’s cost you in terms of planning consent with the feesand also the cost in respect of setting up the business and future profits (!) but the stress is not something that you’re likely to recover a great amount in respect of.
It’s not a bad idea to tell the solicitor what’s happened , what they have done wrong,and tell them what you want them to do to sort it.
I would suggest that letter came from the solicitor because it will be taken more seriously.