Disappearing restrictive covenant...

[JulianS]

Hi

My family sold some land in 1989.

A restrictive covenant was placed on the land limiting its use to agricultural & horticultural only.

This covenant is described on both the 'contract of sale' and the conveyancing document from that time. We have copies of these documents.

The land was sold again as three separate blocks to three separate new owners in 1999.

According to the title deeds in the Land Register these blocks of land were first registered in 1999 & 2000. We have recent copies of these title deeds.

The title deeds in the Land Register make mention of the covenant for two of the blocks of land, but for one block of land there is no mention of a covenant.

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Re. the block of land for which there is no mention of the covenant - a few months prior to registration the then owner signed a letter with my family to temporarily relax the covenant to allow for equine use of the land - so the owner was definitely aware of the covenant and the letter is very clear that the relaxation was temporary . We retained copies of this letter.

Fast forward to 2018 and this particular block of land is sold again. In 2021 the new owner applies for permission and erects permanent buildings on the land. We informally speak to the new owner and they claim no knowledge of any restrictions on the land - stating they'd been assured by the previous owner that there were no restrictions . Their solicitor advises them that, since there's no mention of covenants in the Land Register title deeds then no such covenant exists.

So, it appears that when the block of land was registered with the Land Registry the covenant wasn't, and now it cannot be enforced..?

Our solicitor is adamant that there is a restrictive covenant on the land, citing the conveyancing document and the previous relaxation letter as evidence. The new owner's solicitor is advising their client that this evidence is insufficient.

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What to do? Our solicitor is offering to carry-out investigations with the Land Registry but will charge us (handsomely) for doing so.

So we're potentially having to pay for a rather convenient omission 20yrs. ago.

Would drop the whole matter but we've already invested a few £100s of my late father's estate not to mention our time & frustration getting this far...

We remain on amicable terms with the new owner - we don't see this as their fault...

Any thoughts on the most efficient way forward? Would like to look into making a claim but against who?

Thanks for reading...

Julian

[Ukmicky]

God I hate covenants . Anyway my understanding which would mean in my opinion your solicitor is wrong



The law says the new owner must have notice of it for it to run with the land ,so it needs to be protected by registration. This allows any new owner to gain notice of the covenant when they perform their due diligence checks at the land registry

If the land was unregistered when the land was divided and sold in order to protect the covenant it needed to be registered as a class D land charge against the then owner . if so it still burdens the land . If it is not registered as a land charge then it can’t be said that the new owner had notice it.

if the land was registered it needed to be registered as a land charge against the land not the owner . As it is not on the register of title I take it that that didn’t happen .

if by relaxing the covenant you mean there was a gentleman’s agreement and the covenant was not protected by registration then it does not bind future owners but there may be or have been a cause of action against the original party with whom there was a gentleman’s agreement.

Whether you personally however have the right to instigate legal action against the original party however is another question for another day and you may also have an issue showing there was an intention under the agreement for the covenant to run with the land if nothing has been registered.

I mean what was he meant to do . If it unregistered it’s nothing more than a personal agreement between two people. I doubt you have the right to enforce the agreement under contract law and I doubt the agreement would have compelled him to legally to approach the successors in title of your family’s land and agree to a proper restrictive covenant being registered against his land before he sold it.

Be careful where you go with this one as your 100s of pounds could become thousands and there is a big question mark as to whether you have any rights to sue anyone for anything.

[Ukmicky]

Also you your self can do a search of the charges register so you don’t need your solicitor . Call the land registry and they will help.

[JulianS]

Thank you very much for taking the time to reply.
I'm beginning to hate covenants too...

You yourself can do a search of the charges register. Call the land registry and they will help.

Yeah - I was thinking of this just now - it will probably be my next step...

Your 100s of pounds could become thousands

I hear you all too clearly! This is precisely what I'm trying to avoid by asking around (the only people who win may be the lawyers on this one)

in my opinion your solicitor is wrong

By their own admission, our solicitor is not a property specialist. They've earlier stated that if the matter became complex then we might have to take it up with a Property Lawyer colleague (££££'s!)

if the land was registered it needed to be registered as a land charge against the land not the owner. As it is not on the register of title I take it that that didn't happen.

That's my take also... Sadly evidence of who did this and their intent isn't immediately or easily available. We know who owned the land at the time it was registered and we know that, a few months prior to registering the land, the then owner signed the letter to relax the covenant - so they were aware of the existence of the covenant...

if by relaxing the covenant you mean there was a gentleman's agreement

The relaxation was a formal letter drawn-up by our solicitor, signed & witnessed by all parties. It states clearly that the relaxation was temporary and allowed only certain activities e.g. any erections to be temporary and removed if/when the land was sold on (that didn't happen since the then owner made permanent erections and didn't remove them prior to selling-on the land). It also allowed for equine use of the land... Would a relaxation of this nature still only be considered as a "gentleman's agreement" even if it's not mentioned/protected by registration?

I mean what was he meant to do.

In my view they were meant to include details of the covenant when they registered the land (as the owners of the other 2 blocks of land did) - although I can understand why they might not have wanted to (and that they weren't obliged to)... but that leads on to...

Whether you personally however have the right to instigate legal action against the original party however is another question... you may also have an issue showing there was an intention under the agreement for the covenant to run with the land if nothing has been registered.

Thanks for all these very good (but disappointing) points.

So I'm now thinking that my questions broadly divide into:

1) Is it possible to add the covenant to the register entry for the land now - I'm guessing not - but if so what would this involve and at what cost (financial & otherwise)?

2) Do we have any rights or grounds for taking action against the party who registered the land without details of the covenant - this too seems doubtful based on your response- but if so what would this involve and at what cost (financial & otherwise)?

I guess we'd need to get professional legal opinion about these questions - but it really helps to actually know what to ask - thanks...

It is frustrating - I know my father wanted the covenant to run with the land but I guess he should have registered it all before he sold it? I am glad, however, that we've kept things amicable with the current landowner and our solicitor who has (quite frankly) fumbled things a bit - there have been times when I've wanted to get stroppy with all of them...

I realise it's the law but it doesn't feel right that a covenant (and my late father's valid wishes that he paid to have put in place) can be binned by simply not including them when registering the land... and that registering is the only legal means of protecting & preserving a covenant that was clearly intended to bind future owners also (as evidenced by the fact that the relaxation arrangements stipulated that any temporary structures were to be removed before the land was sold again)...

I asked the opinion of the agent we use to manage the renting out of the land we retained (which my father got around to registering in 2010 thankfully!) who cautioned us to "be careful that inaction is not taken to imply acceptance of the circumstances" and urged us to consider raising our objections to the situation, (not the current owner or their plans) in writing via our solicitor... So that's perhaps another option to explore and perhaps a place to leave the matter... Although I've got to wonder what the point of doing that would be if nothing's protected unless it's registered...

[des8]

This is the sort of situation that lawyers love.
The opposing solicitors will be adamant their view is correct and will play letter tennis with each other.
They will seek barristers (contradictory) opinions and continue the letter tennis until eventually they get in front of a judge to obtain a decision, which the losing side might appeal.

Please heed Ukmicky 's warning re costs

crossed with julian's last post which shows awareness of possibilities!

[JulianS]

des8 and Ukmicky

A quick update - I enquired & got a response from The Land Registry about this matter.

If the land was unregistered when the land was divided and sold in order to protect the covenant it needed to be registered as a class D land charge against the then owner. If so it still burdens the land. If it is not registered as a land charge then it can't be said that the new owner had notice it.

If the land was registered it needed to be registered as a land charge against the land not the owner . As it is not on the register of title I take it that that didn't happen.

It seems that this is the case. (Unsurprisingly) Unbeknown to us a solicitor's letter was sent to The Land Registry at the time that the land was registered in 1999 requesting that no mention of the covenant be made on the charges register as it was 'registered against the vendors, but these do not relate to the property'.

Attached (below) is a text document with the precise wording of both the solicitor's letter and the response to me by the Land Registry

Still pondering next steps...