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Matt Jones
Matt Jones, Solicitor
Category: Property Law
Satisfied Customers: 671
Experience:  I am a qualified and practicing Solicitor with over 7 years post qualification experience
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We have restrictive covenants on land we own next to our dwelling

Customer Question

We have restrictive covenants on land we own next to our dwelling house purchased Sept 2012. It was built circa 1965 by Harpers Builders. We want to erect a higher border fence (which adjoins the footpath in a cul de sac) than in this covenant and possibly build a new house on the land in the future. We were offered an indemnity policy when we were buying the house but declined to purchase this at the time as funds were tight. Instead I wrote to the possible beneficiaries of the covenants and they said they would remove them for £250 per covanent which is more than the indemnity policy so consequently we did nothing at the time until now when we want to erect this fence. So if we wanted to buy an indemnity policy now, one condition would be that we have not made any enquiries to the beneficiary of the covanent which unfortunately we did do back in Sept 2012. Do you think we have shot ourselves in the foot by doing this? and do you think the only route left open to us for future certainty is to pay the beneficiary the £250 per covanent to get them removed? I presume we should involve a solicitor to ensure this is done in a watertight way that no future objections will be forthcoming.
Submitted: 2 years ago.
Category: Property Law
Expert:  Matt Jones replied 2 years ago.

Matt Jones :

Hi I will try and help

Customer:

Great -

Matt Jones :

Ok one sec please

Matt Jones :

so whom did you contact originally to ask for permission? was it Harpers Builders?

Expert:  Matt Jones replied 2 years ago.
we can carry on as a Q& A session from here on in

so whom did you contact originally to ask for permission? was it Harpers Builders?
Customer: replied 2 years ago.

Did you get my answer Matt - I took ages replying enclosing document links but I cant see my answer in the summary????

Expert:  Matt Jones replied 2 years ago.
Hi

No sorry not sure what happened. It could be that, as you only have 10 minutes in the chat section it ran out of time

can you re-post?
Customer: replied 2 years ago.

here are the covenants:-


 


http://i1101.photobucket.com/albums/g439/krmoreton/restrictive_covenents_P_1_-_2-01_zpsdcebd135.jpg


 


http://i1101.photobucket.com/albums/g439/krmoreton/restrictive_covenents_P_1_-_2-11_zps84db9a7c.jpg


 


http://i1101.photobucket.com/albums/g439/krmoreton/restrictive_covenents0201_zpsaaa1e385.jpg


 


 


 

Customer: replied 2 years ago.

we have not asked anyone permission fro anything yet and dont intend to but dont want a neighbour to object after erecting fence trying to enforce a covenant - i want to be sure we wont ahve any comeback


 

Customer: replied 2 years ago.



This is a copy of the email I have received from Harpers in Sept 2012 who I believe is the possible beneficiary of the covenants.


RE: Restrictive Covenants relating to*****/h2>








Inbox

x
































Vikki Overton <*****@******.***>




12/09/2012









to me







Dear Mr Moreton,


 


Following discussions with the Board of Directors and where we have the given authority I can confirm that Harper Group Construction Limited (formerly known as J. Harper & Sons (Blackheath) Limited, company registration no: 182455) would be prepared to remove each restrictive covenant held in Title No HW57905 for a fee of £250 per covenant. We have no records relating to the company J. Harper & Sons (Estates) Limited so you may need to seek advice from your solicitors regarding this company.


 


We trust that this serves your purpose and look forward to hearing from you in due course.


 


Regards


 


Vikki


 


Vikki Overton


Group Administration Director


 


J. Harper & Sons (Leominster) Limited


Beeches Road, Rowley Regis, West Midlands B65 0BB


Southern Avenue, Leominster, Herefordshire HR6 0QF


 


Tel: 0121(###) ###-####or Tel: 01568 612925


www.harpergroup.co.uk


 


This e-mail and any attachments to it are strictly confidential and intended solely for the addressee. It and they may contain information which is covered by legal, professional, or other privilege. If you are not the intended addressee, you must not disclose, forward, copy or take any action in reliance on this e-mail or its attachments. If you have received this e-mail in error, please notify the sender at Harpers on 01568 612 925 as soon as possible and delete this e-mail immediately and destroy any hard copies of it. Neither Harpers nor the sender accepts any responsibility for any virus that may be carried by this e-mail and it is the recipient's responsibility to scan the e-mail and any attachments before opening them. If this e-mail is a personal communication, the views expressed in it and in any attachments are personal and, unless otherwise explicitly stated, do not represent the views of Harpers.


 


Registered in England & Wales.


Registered office:***** Rowley Regis, West Midlands B65 OBB



Harper Group PLC Registered No:(###) ###-####/p>

Harper Group Construction Limited Registered No: 182455


J. Harper & Sons (Leominster) Limited Registered No: 782078


 


Tel: 01568 612 925 Fax: 01568 613 615













Expert:  Matt Jones replied 2 years ago.
Thank you .

I will need a bit of time to look at this. I shall consider this evening and reply as soon as possible
Customer: replied 2 years ago.

Thanks Matt - No Rush

Expert:  Matt Jones replied 2 years ago.
HI

Sorry for the delay.

A couple of points to consider:-

1) Certainly if you contact a beneficiary of a covenant it make it more difficult (if not impossible) but if available then more expensive, to insure pre-breach (i.e. before the breach has actually taken place). Even then most insurance companies would require you to go through the planning process to "flush out" any potential objections.

2) I have my doubts that J. Harper & Sons (Leominster) Limited are the beneficiaries of the covenant. The covenants are contained in the conveyance dated 6th December 1985 made between Alan Burt Harper (seller) and Mr and Mrs Mahadeshwar (buyer). The beneficiary is therefore Mr Harper in 1985. There could be some complex legal arguments about whether the covenants still protect the seller, but i would need to delve into this a bit further (which is more of a standard retainer fee basis), but the point it that the limited company are not the people to give you consent

3) Clearly the similarly in the name of the company and the seller is going to be material, as although you haven't gone direct to Mr harper by writing to the company you could be seen to be bringing it to his attention. This would be an important factor for an insurance company.

4) The covenant doesn't preclude the building of more houses. It just says you have to do it with permission after submitting plans. there is a legal argument that this permission couldn't be "unreasonably withheld"

5) The word "residence" in the 6th covenant could cause all sorts of interesting legal arguments. The usual wording is " a private dwelling house" which the courts have in the past construed to mean 1 house. However residence could be plural, and the use of the words "private residence" are just there to distinguish from a "business". I am not sure how this would come about if it went to Court, but it sheds a bit of doubt on this whole matter, which could help in acquiring insurance.

6) The bot***** *****ne is do you ask for permission from the supposed beneficiary, or get insurance.

I think the former is possible but you would need a solicitor to look in more detail at the documents (including the actual 1985 covenant) and liaise directly with the possible beneficiaries (it could be more than once, especially if the original Mr Harper has sold land off to other neighbours in which case you may need to involve them? this is why it needs a bit more digging). I think the latter is possible, but you will need to get a bespoke policy and a solicitor will have to actually make a case to the insurance company with the required evidence to ensure the policy is sufficiently protective. the policy will be based on the value of the property once complete and so it is difficult to say what it would cost, but given the circumstances it is very likely to be more than £500 (assuming it is only 2 covenants you require the removal of)
Customer: replied 2 years ago.

Hi Matt,


 


Thanks for this detailed reply.


 


Point 2 - Are you suggesting then that J. Harper (leominster) Ltd are happy to take my money but don't have the authority to remove the covenant from the deeds - suggesting they are happy to make a quick buck out of the circumstances?


 


Point 4 & 6 - As far as I am aware Allan Harper is dead so I guess he wouldn't be interested in any benefit from enforcing a covenant!


http://www.rhhs.org.uk/st-kenelm-s-graves/index-of-graves-in-st-kenelm-s-churchyard-part-ii/introduction.html


 


Point 4 - As far as submitting plans - as well as getting planning permission from the council, do you believe that Harpers Leominster would have to approve the plans also?


 


Thanks once again for your expert advice here.


 


 

Expert:  Matt Jones replied 2 years ago.
Thanks for your reply. please see my comments to your question in capitals below:-

Point 2 - Are you suggesting then that J. Harper (leominster) Ltd are happy to take my money but don't have the authority to remove the covenant from the deeds - suggesting they are happy to make a quick buck out of the circumstances?
I DON'T KNOW WHY THEY WOULD SAY THIS. IT IS POSSIBLE THEY SIMPLY HAVEN'T CONSIDER THE MATTER CAREFULLY ENOUGH. I AM CERTAINLY NOT SUGGESTING FRAUDULENT BEHAVIOUR! YOU DO NEED TO CONSIDER WHO IS GIVING YOU THE CONSENT THOUGH

Point 4 & 6 - As far as I am aware Allan Harper is dead so I guess he wouldn't be interested in any benefit from enforcing a covenant!

http://www.rhhs.org.uk/st-kenelm-s-graves/index-of-graves-in-st-kenelm-s-churchyard-part-ii/introduction.html

IT IS POSSIBLE HIS SURVIVORS (I.E HIS BENEFICIARIES UNDER HIS WILL) HAVE THE LEGAL BENEFIT OF HIS COVENANTS. HOWEVER THIS DOES IMPROVE THE LIKELIHOOD OF OBTAINING INSURANCE

Point 4 - As far as submitting plans - as well as getting planning permission from the council, do you believe that Harpers Leominster would have to approve the plans also?

ONLY THE BENEFICIARIES OF THE COVENANT WOULD NEED TO GIVE CONSENT AND AS AS CAN SEE THIS IS FAR FROM CLEAR WHO THEY ARE, BUT IT APPEARS THEY ARE NOT THE COMPANY
Customer: replied 2 years ago.

If we were to buy an indemnity policy then, would we, in your opinion, be safe to state the we had not contacted the 'beneficiary' of any covenant contained in the deeds as we have not attempted to contact Allan Harper directly?


 


Is it possible J Harper (Leominster) Ltd could have received the benefit (in his will) of covenants Allan Harper made when he was principle? In which case I would be not telling the truth I suppose.

Expert:  Matt Jones replied 2 years ago.
As I stated earlier, my advice is to get a solicitor to get a proposal together, along with legal opinion and approach a reputable insurance company that is experienced in these things.

It is no good just getting an "off the peg" policy and hoping for the best. It is pointless getting a policy, then seeking to rely on it only for the company to try and side step their responsibility for lack of disclosure in the first place. All we have discussed is relevant and needs to be disclosed, that way the insurance company can weight up the options and quote accordingly. it is only way of being assured good cover. With planning I think there is fair chance of cover (and even in the worse case scenario of no cover being available, at least that has focussed your options)
Matt Jones, Solicitor
Category: Property Law
Satisfied Customers: 671
Experience: I am a qualified and practicing Solicitor with over 7 years post qualification experience
Matt Jones and 2 other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks for your advice Matt - have a nice day.

Expert:  Matt Jones replied 2 years ago.
No problem all the best.

if you wish I can offer a service, for an additional fees, whereby you can call me/I call you, or Skype and we spend some time discussing things in more detail.

Let me know if this is something you wish to consider in the future
Expert:  Matt Jones replied 2 years ago.
Hello

I hope that my advice assisted you, and all has gone well. If you have time then I would welcome an update.

If you have any other legal questions then please post "FOR MATT JONES" before you ask your further question and I will endevour to come back to you. I may not be online at that particular moment but will come back to you as quickly as I can.

All the best

Regards

Matthew J

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