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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9318
Experience:  I have been practising for 30 years.
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I bought 8 Acres of land next to my house for £20,000 and

Customer Question

I bought 8 Acres of land next to my house for £20,000 and have obtained planning permission to run a go karting business on this land, spending £70,000 setting it up, the previous owners have now advise that a restrictive covenant is on this property which prohibits me from running any business from this land, the original commercial lawyer did not advise me on this fact, I have spent 3 years setting this business up & they have told me I can run the business on a license, which they want me to pay for, but I can never sell it. Can I sue the property lawyer for negligence & would I be able to sue for the £70,000 start up costs.
Submitted: 11 months ago.
Category: Law
Expert:  F E Smith replied 11 months ago.

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.

Customer: replied 11 months ago.
The previous owners
The previous owners found out after planning was granted, we think from a disgruntled neighbour, we had a lot of local objections to the planning permission..
Yes it was in the deeds to the house, we knew this on the house, we weren't told on the land
Don't understand your next question.
We bought the house using a residential solicitor.
We bought the land about 11 yrs ago using a completely different commercial solicitor.
We ran this business for 3 years & the previous owners knew what we were doing, as they still farm fields around us, but it was a temporary planning which was granted and we had to close the business down & apply for full planning on a different field, then we were granted full planning, what makes us angry, is the fact that we ran the business for three years and they let us without informing us of the restrictive covenant, till we obtained full planning & re starting the business, which cost us a further £45,000, which we would not have done, had we been aware of this covenant.
Customer: replied 11 months ago.
Did you get my response
Expert:  F E Smith replied 11 months ago.

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.

Best wishes.


F E Smith and other Law Specialists are ready to help you
Customer: replied 11 months ago.
The farmers who sold me the land would be the beneficiaries of the restricted covenant & they are still alive.
Now that we have uplifted the price of the 8 acres by gaining the full planning permission, which took well over a year to obtain & was very stressful & expensive, how would that be calculated, even though the covenant say's we cannot run any business from it?
We are in Rural East Anglia.
How do we start any Legal proceeding with the commercial lawyers? We think they will have professional indemnity insurance to cover such negligence.
Customer: replied 11 months ago.
Can you please answer my last question.
Expert:  F E Smith replied 11 months ago.

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.

Customer: replied 11 months ago.
Hi, what do you think of this:-
We go back to the commercial law firm, seeing the senior partner, telling them what we have discovered, giving them the opportunity to deal with the farmers to get the covenant lifted & should a cost be involved they are to pay this, thus giving them the opportunity to put thing right, without initially going to their insurers & if they can't sort it out with the farmers at no cost to ourselves, this would show that they are accepting liability, which would only help our case if we had to go to court at some point in the future, do you think this is a bad idea, are we playing our hand to quickly, what action would you do?
Expert:  F E Smith replied 11 months ago.

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.