Covenant removal

[Amethyst]

Does anyone know the process for having a covenant removed ?

Just thinking a some point in the future we've got a ' can't put a structure ' on a bit of land covenant and of course the other half wants to ' put a structure ' on it ( there's actually been a shed there for 7 years but he wants to replace it with a garage )

[R0b]

Normally an application to the Upper Tribunal under s.84 of the LPA 1925 is the standard way to vary or remove a covenant.

You can also enter into a Deed of Release with the beneficiary of the covenant or you could rely on common law where the breach as continued for so long that the covenant has effectively been abandoned. I think it is accepted practice that non-enforcement of the covenant after 20 years you could rely on the abandonment argument, but anything less is subject to the circumstances.

Indemnity insurance is another option too but there might be an additional premium if you plan on building sooner than later since there could be an increased risk to the insurer

[Amethyst]

Thanks R0b, I am a little nervous to start making enquiries of the beneficiaries ( the council ) in case they decide they'd rather enforce what's in place and simply result in us having to remove the current 'structure'.

Would it be wise to enquire about planning permission first - I believe the covenant may be due to visibility so if we obtain planning permission first, that will be looked at, and that can then be submitted as reason why the covenant is unnecessary.

[R0b]

I was hoping you wouldn't ask any more questions... my property law knowledge is not as great as it used to be lol.

Tagging des8 for further input but I had a quick google and suggests that planning permission does not override the covenant. the PP must comply with the covenant. But see link below where there was a case where the Tribunal allowed modification to reflect PP given.

https://www.daviesandpartners.com/ne...hts-to-develop

If you can obtain PP, you could then consider negotiating a release from the council or, try your hand at the Tribunal and see if it passes.

[Amethyst]

Well its rather greater than my knowledge on the matter so I thank you for your input.
My thoughts atm are if we are going to have a battle to remove a covenant to build a 'garage' we may as well build a full on extension and we can't afford to do that so likely will stick it on the 'maybe later' list.

[des8]

before commenting on the viability of requesting removal of the covenant I think we need to know more about the reason for its imposition originally.
You mention possibly for reasons of visibility.
Is that because it would be visible to others from certain vantage points, or would spoil someone's view or whatever?
Has the reason become out dated?
Would those affected by the proposed man cave (!) object?
Are there other buildings on the surrounding land?

[Amethyst]

Here's the land...

The Yellow Car is mine ( I know, it's beautiful isn't it )

So to the left of that all the grass bit is part of our land. The green thing behind the tree is our current man cave ( we've cut the tree down to lower than the house now as it was getting out of hand) . We wanted to put a drop kerb, driveway etc to the side of the house and change the shed into a garage ( potentially attached to the house ) the covenant covers the whole area between my car and the house.



There is also a covenant that we put a fence up on the entire boundary but that would be insane... although it does somewhat ruin their argument for visibility if that is the reason for it.

View from the road coming down to the junction.

So the land in question is on the right of picture ( it's an older pic as Google haven't been up that road recently ) hence me thinking it may be for visibility reasons.

[Amethyst]

Ah ha - we didn't argue it... had had enough of problems (HS2 mainly) and just wanted it to go through - finally went through in May. Yeyy



Positive Covenant

19th March 2019, 07:59:AM



which says

" to erect and maintain fence along the boundary marked T"

The boundary marked is not suitable for a fence for various reasons so should we try negotiate removal of the covenant before purchase or just argue if the council ever try to enforce in the future. ( yellow is current fence of rear garden ( which we intend to move slightly in line with front of house ) - red is boundary which the covenant applies to )

[Amethyst]

[des8]

I think you would have difficulty getting that covenant lifted.
For starters it appears the garage will be beyond the current building line(which certainly is a no no in my area)
besides visibility , could the covenant be for aesthetic reasons? Someone doesn't want the nice straight sight line broken?????

Boundary fence where it abuts highway cannot exceed 1 metre in height so does not impede visibility

[Amethyst]

Thanks Des.

Passed that on to Jules...

and got this in response ( recently they have built two houses behind us- think you saw the insanely high fence pictures ) but their fronts are in line with the bethel church... etc



so thats brought the building line forward/right ( slightly )

So theoretically we could be okay to that line ? ( if we got the covenant amended )

[Amethyst]

( can you tell I'm not exactly enthused by this idea lol )

[Amethyst]

He's sitting here with rulers and tape measures out now ffs lol I did promise him I'd ask you guys about the covenant so my own damn fault .

[des8]

In the end the only way forward is to approach the council.
first of all the planning dept to see if they would object to plans to build a garage.
If they can't see a problem, then the legal bods to see about getting the covenant lifted.
Hope they say yes and not "no, and by the way remove that shed" in which case it will have to go at end of garden!

Good luck,

[Amethyst]

Pretty much my thinking - I'll let him stew on it a while... it's a possibility but it's not going to be straightforward Thank you for your thoughts xxx