Restrictive covenants

[sales]

Hi
we are looking to buy a house that 3 years had an extension built to allow for a kitchen and a porch for a downatairs toilet as current couple are OAP that would help them.
they received relevant planning permission and complied with building regulations.
however, it seems they missed a restricitve covenant issued by the council 60 years ago when they sold the property to a new owner (property was built in 1955).
the covenant simply says no alterations or extensions to be built.
we were offered indemnity insurance but out of our control the seller has contacted the council to get a building officer round to provide a certificate saying it complies but as i understand it they would atill require retrospective consent from the council.
for some reason they wont do this
now our solicitor is saying because theyve made the local authority aware then indemnity wont be an option.
My questions are
a. Surely theyve contacted building regulation dept not the dept that deals with covenant (or are they one and the same)
b. Where do we stand, do councils enforce covenants if it is for a small reasonable extension which they themselves granted planning permission for and allows the jome to be used as a family home.
maybe worth mentioning these are ex council properties.

any help or advice would be appreciated.

[des8]

Your solicitor could be approaching the council with a view to having the restriction removed by entering into a deed of release

[sales]

Thank you for such a quick response. Is this something we should do after buying the property? If the neighboura are happy and other people on the street have had similar work done does it set some kind of precedent or am i just worrying about nothing? First time buying a house and after years of looking forward to it this has really put a downer on the whole experience

[des8]

There probably will never be a problem, but the difficulty arises when you come to sell as future buyers could be concerned (as you are).

I would expect your solicitor to instruct the sellers' solicitor that they, the sellers should arrange for the restriction to be lifted.

When Planning permission was granted that department would not have been aware of the covenant.
It would have been up to the owners to have been aware of the covenant .
They went ahead with the building, and although very unlikely, the council could order its demolition.
This order could be fought off in the courts
However it is a lot of unwanted hassle, and if the covenant is not lifted it is a very remote threat that you would have to live with.

[2222]

If buying cash, it's a risk you could simply decide to take. However, lenders tend to be highly risk-averse (at least the ones still in business do!) and it would be difficult to get a mortgage as things currently stand. So, even if you don't need a loan, it could well bite you when you come to sell.

It's likely to take weeks/months for the sellers to get a deed of release. Are you prepared to hang on that long?

[sales]

Thanks both for your replies.

@2222: we are using a mortgage to buy which has already gone to offer stage. Our plan is to stay in the house indefinitely as it is and intentions would be to pass it down the family chain.

Also....

if the seller has contacted the buildings department to get a building officer round (they dont have a certificate that extension complies with regulation) ...does this void any possibility of getting indemnity? Or does the seller have to contact specifically regarding the covenants for it to be voided?

we also have no intention of building anything further on the property.

i have re-read the deed and it also says no one can park on front garden and yet most of the houses now have driveways with cars parked. It also says no business vehicles etc and yet the neighbour has a taxi and another house has a builders van. It also says no sheds or greenhouses but most have at least a shed.

are these just outdated covenants (they were issued in 1955 after all) that, if we are prepared to not do any further upgrades, we can just live with?

[sales]

One thing that your comment about mortages that got me thinking. If we wanted to remortgage the house to get a btter rate for example, will this issue hinder us?

[2222]

If you need a mortgage, this is probably a non-starter until the deed of release is in place. You wouldn't know whether the indemnity policy is valid until you claimed, by which time it's far too late. Your solicitor acts for the lender, too, and he's supposed to warn them if there's a potential problem with the indemnity.

So, as things are, really the only way forward is the deed. It sounds as though the council ought to grant it, bearing in mind the other houses in the road, but it won't be a quick process. That's judging by my local council, who took 5 weeks to deliver a bin!

Of course, if the house is being sold at a huge discount, because of the covenant issue, that's a different matter.

[des8]

If the seller has not communicated with the council (or other third party) about the restrictive covenant, there should be no reason why an indemnity policy can't be purchased.

Your posts aren't clear if the seller has been in touch with the council about the covenant as well as seeking a certificate of completion

[2222]

Des, the OP says: "now our solicitor is saying because theyve made the local authority aware then indemnity wont be an option."

If that's the solicitor's view, he is supposed to inform the lenders. The solicitor may be wrong, but it will still put a hold on matters.

[des8]

but I would expect the lenders to be prepared to accept the indemnity policy as sufficient surety.

Who, if anybody, has brought the matter of breach of covenant to the attention of the council?

[sales]

I dont think anyone has. They received plannin permission but didnt get a building safety certificate so they contacted that dept to get a building offiver to inspect the extension. Ive been advised though as these are separate departments then indemnity will be ok. Our mortgage advisor and solicitor have both recommended this.
we're not planning to do anything to the property and hoping to have it as a family home thats handed down when we pass.
so i think we are going to take the insurance and just enjoy the house. I hear these 1950s covenants of this type are rarely enforced?
like i said tho, so many contraventions on that road from extensions to driveways that it just seems no one cared about the covenant

[2222]

So, you're saying that your solicitor has changed his,mind?

[des8]

thanks for letting us know your decision

[filledkindle]

There probably will never be a problem, but the difficulty arises when you come to sell as future buyers could be concerned (as you are).

I would expect your solicitor to instruct the sellers' solicitor that they, the sellers should arrange for the restriction to be lifted.

When Planning permission was granted that department would not have been aware of the covenant.
It would have been up to the owners to have been aware of the covenant . Update gun mayhem 3.0
They went ahead with the building, and although very unlikely, the council could order its demolition.
This order could be fought off in the courts
However it is a lot of unwanted hassle, and if the covenant is not lifted it is a very remote threat that you would have to live with.

It's likely to take weeks/months for the sellers to get a deed of release. Are you prepared to hang on that long?