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Buachaill, Barrister
Category: Law
Satisfied Customers: 10944
Experience:  Barrister 17 years experience
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A charity owning the land next to us has submitted plans for

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A charity owning the land next to us has submitted plans for a development ( block of 14flats) to abut on to our end of terrace Victorian house and also build up on to our rear garden wall with two storeys. They originally owned all the road and we all have restrictive covenants re not changing architecture-elevations etc. They have re registered their land and it's buildings (workshops) and say the original deeds with accompanying restrictive covenants are lost. Document says they would still be enforceable if known. Can we protect ourselves in any way please?
1. Dear Vivienne, I know you don't want to hear this, but you need to engage fully in the planning process and attempt to stop the development via the planning process. Planning effectively legalises any nuisance which the block of flats would create. So, once planning permission is granted, then the building can be built, irrespective of the defects in title which the land folio might have. If necessary, you should seek to judicially review any decision in favour of the developer.
2. In relation to the actual title to the folio, the fact the original deeds with the accompanying restrictive covenants have been lost, does not affect their applicability, so long as these restrictive covenants have been registered against your land Folios. So long as registration has occurred, these restrictive covenants are enforceable. It would only be if the restrictive covenants were not registered that then each owner would be freed from their effect as then there would be an onus on the charity to prove that they exist, in which case they would not be able as they are lost. However, there is no reciprocal burden placed on a person who holds the benefit of restrictive covenants to engage in good behaviour to aid the properties over which the restrictive covenants run. So here, the charity would not owe you and the other landowners any duty to comply with the restrictive covenants they hold over your land.
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