Is my restrictive covenant now dead in the water?

[magicbananaman]

Hello all. A few years ago I bought a house with 2 title deeds, one for the "main" part of the house, and one for an additional parcel of land that was sold in 1933. That parcel came with a restrictive covenant stating that the Purchaser and his successors (i.e. me) covenant with the Vendor that the parcel should only be used as a garage. Am I right in thinking that for the following 2 reasons the covenant is no longer enforceable: (1) Only a particular named individual, long dead, is named as the Vendor, and the Vendor's successors are not mentioned; (2) way back in 1987 formal planning permission was granted to build a 2-storey dwelling on the parcel of land, and this was indeed built, and there has been a 2-storey dwelling place there ever since 1987 (which now acts as a small annexe to the main part of the house). As far as I am aware the Vendor's successors have never objected, or are even aware of the covenant. Thanks!

[dan_1207]

Re: Is my restrictive covenant now dead in the water?

Were you given a restrictive covenant insurance policy at any point?

- - - Updated - - -

And is the property / land registered?

[dan_1207]

Re: Is my restrictive covenant now dead in the water?

Overall, I would say your land is still bound. The insurance policy will help, though.

[des8]

Re: Is my restrictive covenant now dead in the water?

if the person who imposed the restriction no longer exists, then the restriction cannot be enforced and would no longer be subsisting or have any continuing effect. If the person exists but is not willing to lift the restriction, then the restriction remains in force.
Sometimes where people think that no one will be bothered to enforce a covenant, they might go ahead and deliberately breach it. Then if no enforcement action is taken for a period of 20 years, it is assumed that that the person who imposed the covenant will not take any action


Read more: http://www.justanswer.com/uk-propert...#ixzz3dxHuvypw

[dan_1207]

Re: Is my restrictive covenant now dead in the water?

A successor in title to the Covenante can enforce the covenant if he can show that the benefit of the covenant has been assigned to him. For this to succeed, there must be an unbroken chain if assignments from the original covenantee to the current to the current owner benefiting from the covenant. If the chain is broken, the covenant cannot be enforced.

[des8]

Re: Is my restrictive covenant now dead in the water?

Agree , so if we are to completely answer the question posed, we need to see the wording of the covenant.
As posted the wording suggests that the covenant is solely with the vendor. There is no mention of the vendor's successor's in title so I concluded the covenant was personal to the vendor.

[magicbananaman]

Re: Is my restrictive covenant now dead in the water?

Thanks all, and I hereby paste the whole thing if any of you knowledgeable folks is inclined to have a read! It would seem that Hepworth v Pickles kills it (as it's been in breach since 1987) but anyway here is the wording:

[BEGIN PASTE]
C: Charges Register
This register contains any charges and other matters that affect the land.

1 A Transfer of the land in this title dated [1933] made between (1) [the Vendor] and (2) [the Purchaser] contains covenants details of which are set out in the schedule of restrictive covenants hereto.

Schedule of restrictive covenants

1 The following are details of the covenants contained in the Transfer dated 11 February 1933 referred to in the Charges Register:- "For the benefit of the Vendor's adjoining property known as [address of Vendor] aforesaid and so as to bind the land hereby transferred the Purchaser hereby covenants with the Vendor that the Purchaser and the persons deriving title under him will henceforth observe and perform the stipulations and conditions contained in the Second Schedule hereto

THE SECOND SCHEDULE before referred to

1. NO building shall be erected on the land hereby transferred except a private motor garage with store over in accordance with plans to be previously approved in writing by the Vendor's Surveyor

2. NO trade or manufacture or business shall be carried on upon the said land or in any building now or hereafter to be erected thereon nor shall any such building be used as a dwelling or sleeping apartment nor anything be done which shall be or grow to be a nuisance or an annoyance to the Vendor or to the neighbourhood.

[END PASTE]

Thanks!

[magicbananaman]

Re: Is my restrictive covenant now dead in the water?

Yes, it's all registered, and when I bought the place I also bought indemnity insurance for the covenant, for which the insurer discussed the matter with the solicitor and then came up with the premium of £300 for £500000 worth of cover for me and successors for all time - I take it from the very low premium that the insurer thought it very unlikely there would be any sort of successful claim, which is nice!

[des8]

Re: Is my restrictive covenant now dead in the water?

The covenant is with the vendor.
The covenant is unenforceable as it requires the vendor's surveyor to approve, and presumably the vendor is now dead and has no surveyor!
http://www.hartbrown.co.uk/article/d...-to-a-covenant

[magicbananaman]

Re: Is my restrictive covenant now dead in the water?

The covenant is with the vendor.
The covenant is unenforceable as it requires the vendor's surveyor to approve, and presumably the vendor is now dead and has no surveyor!
http://www.hartbrown.co.uk/article/d...-to-a-covenant

That's true, but that just refers to the "garage with store over" in paragraph 1, whereas paragraph 2 seems to have a catch-all clause about no buildings with "sleeping apartments" being allowed...?

[des8]

Re: Is my restrictive covenant now dead in the water?

True, but that bit is covered by the 20 year rule (hepworth v Pickles)