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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71134
Experience:  Over 5 years in practice
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We purchased some land in 2008 which contains a overage provision

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We purchased some land in 2008 which contains a overage provision in the transfer deed stating 'the open market value of the freehold interest in the chargeable property is currently and will forever after be used as a holiday park to include chalets and other similar holiday accommodation permitted on the property by the Local council with no possibility for alternative uses. The council have provided us with a change of usage to residential and we are selling part of the land with a bricks and mortar property. Do you think that this clause restricts the property as being used for residential purposes?

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

When was the overage provision put onto the deeds?

Was it included in the 2008 transfer or had it been put on for a long time before that?

Who has the benefit of the provision?

Are you sure that's the right and complete wording because it refers to the use and open market value which doesn't make sense.
Customer: replied 3 years ago.

Hi Jo,


It was included in the 2008 TR1 and the transferors have the benefit of the provision


Yes the wording is definitely correct


Many thanks

The wording is very unusual I am not certain why there is the reference to the open market value in clause which is a restrictive covenant.

To say that the open market value will be used as a holiday park is a nonsense.

The whole clause may be void for uncertainty in which case you can do what you like with it.

The general rule is that if there is any dispute over what something means, the court will either interpret or strike it out completely.

The clause is clearly intended to prevent the use for residential purposes and unless whoever put the benefit of the provision on to the transfer deeds is willing to release it, it could be a very expensive court battle the outcome of which could really go either way.

At this stage in time, the easiest way of dealing with this would be to speak to the solicitor that dealt with the purchase for you because clearly, if he agreed this wording.

The next thing to do would be to speak to whoever you bought the land off because they are the ones that would bring any litigation you would have to defend.

I'm sorry that I can give you a definitive answer but the wording of the clause is so vague that it is impossible to do so.

Can I clarify anything for you?

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