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tdlawyer
tdlawyer, Lawyer
Category: Property Law
Satisfied Customers: 1096
Experience:  Lawyer with 9 years experience of advising on property issues.
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I wish to remove a restrictive covenant on part of my garden

Resolved Question:

I wish to remove a restrictive covenant on part of my garden which only permits the construction of a stable. I built a garage/store there 10 years ago and the beneficiary of the covenant has never objected to its use. However he will not agree to the covenant's removal.
Can I have the covenant cancelled so as to protect the existing garage/store and also allow me to extend it?
Submitted: 3 years ago.
Category: Property Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hi thanks for the question.

tdlawyer :

My name is***** can assist with this.

tdlawyer :

The only way you can usually remove a covenant is to apply to the Lands Tribunal.

tdlawyer :

You can find some useful guidance on the provisions of making such applications here: http://www.estatesreview.com/comment/power-to-change-or-remove-restrictive-covenants

tdlawyer :

Why have you rated bad service please?

Customer:

This advice is utterly useless - I have already read the texts in question and many more. I was expecting a personal reply to my specific problem. I would like a refund please.

tdlawyer :

I was aiming to provide a personal reply, but I didn't know what you had read, and I wanted you to understand the backgroun (which I didn't know whether you did) before waffling on with information you might have read.

tdlawyer :

I can provide specific information.

Customer:

Thank you. My questionS are quite specific.

tdlawyer :

Okay, please, do ask me them.

Customer:

Since no-one has ever attempted to object to the use of the garage in almost 9 years

Customer:

2. it has been in constant use since then

Customer:

3. the covenant refers to "stable" without restriction on the style of the building

Customer:

4. the owner of the land at the time agreed verbally to the building

Customer:

5. the current owners bought their house 2 years after the garage was built

Customer:

6. the former owner's solicitors noted the existence of the building during their sale process and never replied to my explanation

Customer:

7. the neighbours house is 200 yards away across 2 paddocks and there are two lines of trees between their house and my garage

Customer:

I could go on

tdlawyer :

Okay I'm glad you set this out.

tdlawyer :

Okay, you could make an argument for the covenant to be discharged on the basis of an agreement (or implied agreement) when the garage was built, thus nullifying the effect of the covenant in any event.

tdlawyer :

Equally, you might not need to do that at all.

tdlawyer :

If consent was given for the garage, then it would be inequitable to allow that to be withdrawn now, and hence, you should be able to rely upon the concept of proprietary estoppel.

tdlawyer :

This is where somebody promises to allow something, then seeks to rely on strict legal rights (like the covenant), the court will refuse to enforce the covenant where it would be unfair to do so, becuase the person seeking to enforce the covenant is "estopped" from doing so.

tdlawyer :

The other factors you make mentions of could be useful from this perspective too.

Customer:

I understand that the agreement should have been in writing, but unfortunately I did not know that then. The original beneficiary died 8 years ago. The successor beneficiary claims that their predecessor told them (he was resident in their nursing home) just before he died that he (then?) objected to the "garage". This was never advised to me by either beneficiary and could conceivably, if it ever happened), have merely been words put into the mouth of a very old and dying man.

tdlawyer :

Ideally, it should be in writing, but as it's not a transfer of land, there is no legal requirement for it to be in writing.

tdlawyer :

Yes, well, there will obviously be scope for arguing who said what etc and to whom, there always is with oral evidence, but strictly, a written agreement isn't necessary to make it enforceable.

Customer:

Now - that's information worth paying for, I did not know that. My wife and I are both prepared to swear on oath about this oral agreement. In addition presumably the absence of any objection to the garage from the original beneficiary or his estate, or their successors over a period of 10 years, despite the fact the OB's solicitors had written to me BEFORE the sale was completed but did not respond at all to my statement about the existence of an oral agreement, is a conclusive argument. I would further argue that the successors went ahead with their purchase anyway, which is construable as tacit agreement with my claim. And anyway they would be hard put to prove any financial damage.

tdlawyer :

:-) Okay, they usually have 12 years to enforce covenants in relation to land (as they're made by deed). So time lapse isn't necessarily the best approach to this, the better one is the assurance/consent that was given.

tdlawyer :

Financial damage is a different thing, and isn't strictly relevant to enforcement of covenants like this.

Customer:

Sorry - not sure what you mean. Are you saying that we can apply to get the covenant lifted based on our verbal agreement? If this were to happen then presumably the existing building would be safe, but what about my right to extend it (subject to pp, etc)

tdlawyer :

I'm saying you don't seem to need to apply to life the covenant at all in relation to the existing garage.

tdlawyer :

As for right to extend, that's more difficult, but it does depend on what was verbally agreed.

tdlawyer :

If they said "you can built it but only to the size of ..." then that's very different to "we're not bothered about the covenant - do as you like"

Customer:

In fact the OB was only concerned that we might try to turn the garage into house, which wasn't and isn't the case. However he only approved the original plans. We were not considering extending at the time. Unfortunately our buyers - due to exchange TODAY - do want to extend it to house their old car collection and still not for residential purposes. If we can't get some kind of agreement or at least some very strong reassurance about being able to protect their position then they will probably withdraw and an 8 house chain could collapse

tdlawyer :

The position is uncertain right now, and that isn't going to change immediately. However, what the buyers could consider doing is taking out some insurance possibly, to cover the risk of being sued if the covenant is enforceable, given everything you've said. Ideally, you want to say as little as possible to them, about background etc., as there is less than can come back on you that way. There is no rapid quick fix though, perhaps other than insurance, that I can think of.

tdlawyer :

The conveyancing solicitors will need to take a view on the covenant's enforceability etc., and decide how best to advice their clients (i.e. whether to proceed or pull out).

Customer:

What would you advise them if they were your client, given that all the above is completely accurate.

Customer:

This I guess is the nub of my enquiry

tdlawyer :

Well, I suppose I'd say they need to accept the possiblity that they may not be able to extend, or that if they chose to do so, there might be legal proceedings. I'd suggest they explored insurance. Ultimately, though, they need to appreciate the decision is theirs, and it's nigh on impossible to quantify the risk that they might face if they did decide to extend in potential breach of the covenant.

Customer:

Thanks

Customer:

Over and out!

tdlawyer :

Thank you!

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