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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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I have a mortgaged property where i have also got permission

Resolved Question:

hello,i have a mortgaged property where i have also got permission to build from local council, [urban infill on massive garden]on the deeds is just my mortgage company showing a charge [plus 1 smaller 2nd charge added later but almost paid off now]there are no other interested parties.there is NO uplift showing. is it possible that the previous builders [20 years ago]can charge me for the right to build if nothing shows on the deeds.8 years ago a solicitor wrote to them [on my behalf]asking what they wanted..they said £60k..but if its not in the deeds do they have a case ?thank you.stefan.
Submitted: 1 year ago.
Category: Property Law
Expert:  wingrovebuyer replied 1 year ago.
Hello. Do you have a copy of the Transfer / Conveyance from when you bought the property? Was it brand new then?
Customer: replied 1 year ago.
hello,i do not have a copy of the transfer/conveyance ,.[would an uplift be on this document?where do i get a copy ?]i bought the house in 2006 and the property is late 80s i believe,maybe earlier.the deeds i have only state i must seek consent from the trustees to build/extend etc in the same style as others in the area,the trustees i believe are the local nuns,i had written consent from them about 8 years ago..i will add the deeds to this email.thanks.stefan.
Customer: replied 1 year ago.
hello,today i found some more info relating to this query,it is the 5th schedule and spells out more about covenents etc,i believe this is the basis on which my previous solicitor wrote to the original builders asking for a "price" to lift any charges,..but i still do not see anything specific.i also have a 4 page document entitled...replies to conveyancing form 29..enqs part 1.should you need this please advise,thanks.
Expert:  wingrovebuyer replied 1 year ago.
Thank you. Is that 5th schedule from the 1989 Conveyance when the builder sold to the first owner of your house after it was built? Assuming it is, I think you need the consent of the Trustees who sold to the builder (ie the nuns), as you have said. The covenant the builder seems to rely on it the one to have no more than one house on the plot. To be enforceable, a restrictive covenant must benefit land owned by the holder of the covenant. This doesn't mean simply in financial terms - there must be a tangible benefit to land. A recent ruling in a similar case said that such covenants can't be used just to extract cash. The figure I'd suggest you offer is £5,000 all in. This is because you could apply to the Property Tribunal to remove or modify the covenant, arguing there's no land which benefits. To do so would cost you around £5,000 but it might take about 12 months to go through. The builder might contest it too. So, it's easier and quicker to pay them £5,000 to release the covenant. £60,000 is way too much. I'll caveat this all by saying the covenant might benefit your neighbour's properties too - if it benefitted the adjoining land and this was sold off in plots after your house was originally sold, then it may benefit those plots. Accordingly, it may be your neighbours who need to release it. On the evidence you've sent me, it's too hard to tell, so you'll need your solicitor to check this. Best, WB
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