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Covenant on property

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    Covenant on property

    I thought I'd put this to the panel as you prolly have more experience of buying houses than I.

    We (wife + 2 little chaps) are having another little chap, so decided to upgrade to a 3 bed. After months of searching we found a lovely three bed semi, large plot and bags of space to extend. A real good investment for the future.

    The wheels have been in motion, contracts signed but not dated, and sent to the solicitor.

    THEN .....


    Get a letter from the solicitor. Yada yada yada, there is a covenant on the house to prevent extension so we suggest taking out an indemnity. See attached documents.

    No documents attached and she has ignored my emails.

    Seeing as the ability to extend was one of our reasons for buying I feel a little betrayed.

    Does anyone know where I stand?

    Can covenants be overturned?

    Is this going to get messy?
    Knock first as I might be balancing my chakras.

    #2
    Originally posted by suityou01 View Post
    I thought I'd put this to the panel as you prolly have more experience of buying houses than I.

    We (wife + 2 little chaps) are having another little chap, so decided to upgrade to a 3 bed. After months of searching we found a lovely three bed semi, large plot and bags of space to extend. A real good investment for the future.

    The wheels have been in motion, contracts signed but not dated, and sent to the solicitor.

    THEN .....


    Get a letter from the solicitor. Yada yada yada, there is a covenant on the house to prevent extension so we suggest taking out an indemnity. See attached documents.

    No documents attached and she has ignored my emails.

    Seeing as the ability to extend was one of our reasons for buying I feel a little betrayed.

    Does anyone know where I stand?

    Can covenants be overturned?

    Is this going to get messy?
    How many houses does the covenant affect? Have any of the rest broken covenants?

    AFAIK covenants are very difficult to overturn. But IANAL.

    At the moment it is a buyers market. Are there any other houses available?

    Comment


      #3
      Originally posted by suityou01 View Post
      I thought I'd put this to the panel as you prolly have more experience of buying houses than I.

      We (wife + 2 little chaps) are having another little chap, so decided to upgrade to a 3 bed. After months of searching we found a lovely three bed semi, large plot and bags of space to extend. A real good investment for the future.

      The wheels have been in motion, contracts signed but not dated, and sent to the solicitor.

      THEN .....


      Get a letter from the solicitor. Yada yada yada, there is a covenant on the house to prevent extension so we suggest taking out an indemnity. See attached documents.

      No documents attached and she has ignored my emails.

      Seeing as the ability to extend was one of our reasons for buying I feel a little betrayed.

      Does anyone know where I stand?

      Can covenants be overturned?

      Is this going to get messy?
      1) no. Depends on the wording of the covenant.

      2) yes

      3) If you actually extend, quite possibly

      do you feel betrayed by the conveyancer or the vendor, If it's the former then you shouldn't. They are clearly doing their job. If it's the latter then did you ever explain how important potential to extend was?

      For what it's worth the probabilty of the covenant actually being enforceable could range from somewhere between nil and almost certain. Depends very much upon the wording of the covenant and whether the original covenantor (or legitimate sucessors) still exist.

      Certainly the fact that there is a covenant arguably prohibiting it will not of itself prevent you obtaining planning and going ahead with the work (though if it is a comparatively new build then permitted development rights are often sacrificed at the initial planning stage which will make it more difficult - the extension being obtained as new build rather than under PDR). The risk is somebody actually being able to enforce the covenant, hence the recommendation for insurance (a specialist area, so be sure it covers you for what you coverage for).

      If you're in the south west I can pass you onto a good planning agent who may be able to help with any planning issues - but they are distinct from the legal issues.

      Edit: Oh you've said you've signed the draft contracts. Make sure your conveyancor knows you're not prepard to exchange at this stage.
      Last edited by ASB; 25 April 2009, 19:16.

      Comment


        #4
        Originally posted by ASB View Post
        1) no. Depends on the wording of the covenant.

        2) yes

        3) If you actually extend, quite possibly

        do you feel betrayed by the conveyancer or the vendor, If it's the former then you shouldn't. They are clearly doing their job. If it's the latter then did you ever explain how important potential to extend was?

        For what it's worth the probabilty of the covenant actually being enforceable could range from somewhere between nil and almost certain. Depends very much upon the wording of the covenant and whether the original covenantor (or legitimate sucessors) still exist.

        Certainly the fact that there is a covenant arguably prohibiting it will not of itself prevent you obtaining planning and going ahead with the work (though if it is a comparatively new build then permitted development rights are often sacrificed at the initial planning stage which will make it more difficult - the extension being obtained as new build rather than under PDR). The risk is somebody actually being able to enforce the covenant, hence the recommendation for insurance (a specialist area, so be sure it covers you for what you coverage for).

        If you're in the south west I can pass you onto a good planning agent who may be able to help with any planning issues - but they are distinct from the legal issues.

        Edit: Oh you've said you've signed the draft contracts. Make sure your conveyancor knows you're not prepard to exchange at this stage.
        Thanks BP and ASB.

        The initial "Hip" docs has section 8.2 Are there any special enforcements?
        Answer Yes.
        If yes please specify - left blank.

        It is the vendors I am narked with. There are also two charges on the property, one to a well know Scottish bank, and one to a relative in British Columbia. (This is the vendors problem methinks)

        The age of the property is 1931, so any covenant is likely to be quite old (not that I'm sure what bearing this has).

        I am also unsure to which properties the coventant applies, but will check (google earth is a wonderful thing) which neighbouring properties have extended.

        Thanks once again for your timely responses on a weekend.

        Also ASB it is in the Southeast (luton tbp)
        Knock first as I might be balancing my chakras.

        Comment


          #5
          Originally posted by ASB View Post
          do you feel betrayed by the conveyancer or the vendor, If it's the former then you shouldn't. They are clearly doing their job. If it's the latter then did you ever explain how important potential to extend was?
          I think he's annoyed with the conveyancer because they haven't replied to his email in a timely manner.

          ISTM that if this is a substantial problem for suityou01 the sol should be on it like a rash. OTOH IME solicitors take three weeks to make their morning cup of coffee.

          tim

          Comment


            #6
            Originally posted by tim123 View Post
            I think he's annoyed with the conveyancer because they haven't replied to his email in a timely manner.

            ISTM that if this is a substantial problem for suityou01 the sol should be on it like a rash. OTOH IME solicitors take three weeks to make their morning cup of coffee.

            tim
            I need to research all the acronyms used in this thread thus far (I'm only half kidding) so will be back later.

            For info, the solicitors letter has enough grammar, syntax and punctuation errors to make me think long and hard about my next move.
            Knock first as I might be balancing my chakras.

            Comment


              #7
              Originally posted by suityou01 View Post
              I need to research all the acronyms used in this thread thus far (I'm only half kidding) so will be back later.

              For info, the solicitors letter has enough grammar, syntax and punctuation errors to make me think long and hard about my next move.
              fwiw - 5% of two thirds of sod all and precisely what you paid for it:-

              1) Google earth etc will only help you know what has been built and possibly extended.

              2) In order to ascertain covenants on other property you will have to obtain their deeds from the land registry. (I believe this is now possible at a fiver a pop)

              3) Given the way pre war development was undertaken it is entirely possible that the purpose of the covenant was simply to protect the orignal landowner from incovenience during the initial develpoment.

              4) Assuming it was a sale to develepers it is likely that any interests of the original convenantor are long gone.

              5) There is probably no conveyance in the UK that is not covenenated in some way

              6) If extensions have been built, and it is an estate of some description, this would tend to suggest that there is no problem with arguably breaching the covenant and that it is not enforceable.

              7) If the above applies and the same covenants are appiled on the surrounding properties there is an argument that it is one overarching covenants that as a result of what has happened has been waived.

              I would suggest it might be useful to ascertain what has been extended, ask the owners if they have the same covenant, what they thought about it and whether it caused them problems in actually building thier extension.

              A large number of covenants are so badly written as to be meaningless - but by no means all. A somewhat different covenant is one I am trying to deal with on a place I am buying at the moment - it's a new build and only require formal transfer of title to me after completion of the entire development (a common enough thing). However the covenant to actually transfer the title only rests on the builder. The impact of this is that if the builder goes bust, whilst there is no question of ownership, the builders sucessors are not actually required to transfer the title. The vendors solcitors view is that it doesn't matter because I can then register the transfer myself. True and unlikey to be refused - but if the sucessors challenge then we have to go to court. Currently trying to agree a covenant to force their sucessors to do the same thing.

              In my view you need to talk it over seriously with your conveyance. And, as BP said, walk away if you are unhappy. The chances of you getting a covenant changed to make you feel better for a house of this age are, frankly, likely to be nil. The only question you can try and resolve is the risk of enforceability.

              Do think yourself lucky you have, it would seem, a good conveyancer. Even if they aren't too responsive.

              Comment


                #8
                Originally posted by tim123 View Post
                I think he's annoyed with the conveyancer because they haven't replied to his email in a timely manner.

                ISTM that if this is a substantial problem for suityou01 the sol should be on it like a rash. OTOH IME solicitors take three weeks to make their morning cup of coffee.

                tim
                Aaaaarrrrrggggghhhh. Tell me about it. My solicitor - who is a good old-fashioned country solicitor wants to dot all the T's and cross all the I's. I am buiying a new build at the moment. Ok, negotiated a price for exchange in 5 weeks after reservation. They send crap conveyance and we can't accept it. They take 3 weeks to say "whats the problem". Solicitors say, no hope to exchange then because there are no searches done. (there is a lgeitamate question over whether they should have been). Meanwhile other end of vendors solicitors is now saying "you can't have those incentives and we'll keep the reservation fee for our costs". It's coming to something when your solicitor has to mention the words "bad faith" in a simple conveyance.

                Comment

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