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We own our detached family home in Hertfordshire on a

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Hello. We own our detached family home in Hertfordshire on a freehold plot of land. We are seeking planning permission from our local council to demolish and rebuild the house, replacing a 4 bed detached house with a larger 4 bed detached house on a similar footprint.In our title deeds there is a covenant, dating back to 1910, which states: “ That there shall be no building or development on the land hereby transferred without the consent in writing of the Transferors or their successors in title first having been given consent not to be unreasonably or vexatiously withheld”. (See 4. In pic attached)We have learned that one of our neighbours is a successor in title to this covenant, therefore we are planning to ask her permission, once we receive planning permission.She is a particularly difficult and unreasonable old lady and we are expecting her to refuse permission due to her not wanting a building site nearby. The development will not impact her light, access etc, it’s a 1 - 1 house replacement and we have our own site access, and the properties are ~25-30 metres apart on large private adjacent plots.If she withholds permission, how do we move forwards.., ie what is the definition of “unreasonable or vexatious” in this context, and is there a standard mechanism/process provided by the courts to challenge and move forwards, if permission is unreasonably withheld?Thank you

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please Nicola

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The first and key step is to obviously get consent from your neighbour. You may need to sit with them and fully understand what their concerns are and come to an arrangement. You may want to instruct a solicitor to prepare an agreement and negotiate terms, but you should try and find common ground with the neighbour first.

If they still refuse to provide consent then there are two options.  You could apply to the court to seek a declaration from the Court that consent has been unreasonably withheld or delayed. This would be made to the Property Tribunal and you would need a solicitor to assist in this regard. This is obviously a last resort as it is costly and time consuming.

Another option may be able to simply proceed with whatever it sought consent to do, even though no consent has actually been given. This can be a risky move, however, as if the covenantor has misjudged the situation this may give rise to an action for breach of covenant against the covenantor. Getting a declaration first from the court removes this risk.

Whether or not the covenantor can seek damages for failure to give consent will depend on the wording of the qualified covenant and the circumstances. Where the party asked for consent (e.g. a landlord) is under a statutory duty not to unreasonably withhold or delay consent, but does so, the covenantor will be able to bring a claim for damages for breach of statutory duty.

I hope this has assisted and thank you for using our services.

Category: Property Law
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