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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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Does the original purpose of a restrictive covenant from 1920

Resolved Question:

Does the original purpose of a restrictive covenant from 1920 take precedent over later
concise additions which largely ignore much of the content of the original?
Submitted: 1 year ago.
Category: Property Law
Expert:  wingrovebuyer replied 1 year ago.

Hi there. If there has been a continuous breach of covenant for in excess of 20 years, without complaint, then it is fairly well established law that the covenant will be deemed unenforceable. I think your application to the Tribunal would succeed, on the basis that there has been such a continuous breach. Indeed, I am not actually sure you need to go down the tribunal route - you can get insurance against anyone seeking to enforce the covenant, and it will be cheaper and quicker than going to Tribunal. Best, WB

Customer: replied 1 year ago.

What 20yr breach are you referring to?I'm looking to build a house on my side garden plot and trying to find a breach to overturn the covenant.

Expert:  wingrovebuyer replied 1 year ago.
Sorry, I interpreted what you said to mean that there has already been a continuous breach (ie building works in breach of the covenant) - is this not the case?
Customer: replied 1 year ago.

Nope.Not unless a swimming pool constitutes a breach that could overturn the RC?

Expert:  wingrovebuyer replied 1 year ago.
A swimming pool is "building", so I don't see why not. Takinf everyhing together (ie the fact there has been building without consent, no action has been taken, the nature of the area has changed etc) I remain of the view that a Tribunal application would be successful. The nature of the covenant is also as such that it is no major issue if it is breached - it isn't about preventing development, but giving the previous owner a veto / say. This was imposed in the 1920s so the vendor is presumably long deceased. If you plan to build and mortgage or sell on, you could get insurance to cover the technical breach. In the circumstances, this would be much quicker and cheaper than going to Tribunal, but the Tribunal process would be certain and final. Insurance, of course, only gives an indemnity, it doesn't extinguish the covenant. Best, WB
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