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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 22951
Experience:  Senior Partner at Berkson Wallace
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We have a question about a restrictive covenant on a

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We have a question about a restrictive covenant on a registered land/plot that we want to buy. It is listed in the A: Property Register as a Deed, but there is no mention of the Restrictive Covenant. It is not however, listed in the C: Charges Register. Is the Restrictive Covenant still enforceable?
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: We have done all paperwork and sent monies to pay for the plot, but held it with our conveyancer until we are 100% sure about this covenant.
JA: Where is the land located?
Customer: Surrey
JA: Anything else you want the Lawyer to know before I connect you?
Customer: The intent of the covenant is to protect the views, but the neighbours are trying to say we cannot build a house at all unless we have their written permission. We have legal advice to say they cannot do this, but we do not want to battle with them. It would be simpler if we could be clear on whether the covenant was enforceable at all in the first place.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!

I have been asked to look at this for you. Are you able to let me have a copy of the deed please? A photograph is quite sufficient although this is a photograph and not the land registry electronic copy, please make sure it is in focus, readable, and fills the screen and is square on. Thank you

Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 22951
Experience: Senior Partner at Berkson Wallace
Stuart J and 4 other Property Law Specialists are ready to help you
Customer: replied 9 days ago.
Attached is the deed and a copy of our land registry.
Customer: replied 9 days ago.
It is important to note, we would like to apply for new planning permission. However, our house will not be as large as that of the current planning permission. (It was 4000 st ft, and we plan only 3000 sq ft.) The neighbours have essentially suggested a ransom -- they would like to knock down and rebuild their own house, but they do not have they money. They suggested it would be best to use our architect and go through planning together, and only then would they give us permission to build. But since they do not have the money to design and apply for planning now... they write, "Sadly, as we are unable to progress our plans now we are really sorry that this will have the consequence of delaying your development."

Thank you. It appears that the transfer from Susan to Marthinus and Jane in 2016 was defective, although looking at the document, it’s not immediately apparent who was selling to was buying. (Looking at the office copies it appears that M&J were the buyers/transferees.

3.1, there is the requirement to register the deed at the land registry. Quite normal.

12.1.2 is interesting because legally, there is no right to a view in common law or statute but you can do that by way of covenant so this is extremely clever. Quite enforceable.

There is an obligation on the Transferee, enforceable in contract therefore, whereby this should have been registered at the land registry by the current proprietors M&J.

The reason it’s not shown the land registry is because they have not done that.

The granting of planning permission or not, is irrelevant because you can have a covenant that stops building but still get planning permission or you can be refused planning permission even though there is no covenant stopping it.

I’m sorry to say that if they wanted GBP50 million to remove the covenant, then you either pay the money or have to restrict your plans. There is no legal basis because they can just refuse right.

 

Restrictive covenant must be no more than is necessary to preserve the rights of the dominant land. If it were not for the fact that this covenant accepted that one of the major features of the house is the view, then you could potentially challenge it but as it is, my advice would be that he doesn’t worth going to.

I’m sorry to say that if they are holding you to ransom and wanting a chunk of money, you either pay up or change your plans.

I’m sorry, I know it’s not the answer you wanted.

 

I tried to call you as requested at about 5:15 PM and perhaps we can speak when you are available if you still need to do so.

Customer: replied 9 days ago.
I tried to answer the call but nobody was there. I was on hold with music. Can we still speak please?

We have spoken.

I will summarise my opinion.

I appreciate that you have a lot of different opinions but of two parties go to court, one of them is going to lose even though both their lawyers told them that they had a fantastic case.

The relevant clause of the deed is 12.2.1

Martin should have registered the deed because he was obliged to do so.

If he is selling to anybody else, but in my opinion he is also obliged to give notice of the existing’s of the deed even though it is not registered at the land registry. He is actually in breach of the deed for failing to register it and it needs to be registered.

However that’s for him to deal with, not you.

 

Analyse 12.2.1. Forget all the first part because that’s just about the view and trees and get to the second part which says that subject to normal planning approval requirements the buyer and successors is deemed to have written approval to carry out the works under the Planning Permission of the property. Planning Permission is defined earlier with a specific number.

We then get to the final sentence any building works which are not within the scope of the planning permission would require the specific consent of the Seller.

Is what you are proposing within the scope of the planning permission? If the local authority will vary within the existing number, then it is in my opinion. However, from what you have said, you are building something completely different and I think is unlikely that the local authority would not need a new application which would have course get a new number. If the local authority will deal with it under the existing number, then I think you are home and dry.

 

Even if you just went ahead regardless and struck two fingers up to next door, if the property is smaller, I don’t think next door would have a hope of bringing a successful claim for breach of the injunction because the court would look at the intention behind this clause and the intention was the view and provided the view was no worse than provided for originally, then you have not breached anything which the clause was intended to protect.

 

However it could stop your build and you could be tied up in litigation for years which I’m of the opinion you would succeed and get costs awarded against the other side but there is always a risk that you would lose. It’s a 54 million to one chance you are going to win the lottery but someone does.

Kind regards