Restrictive covenant - home business

[Smith999]

I am the holder of the benefit of an old (1970's) restrictive covenant over my neighbors property. It states:
*that nothing shall be permitted on the property conveyed which shall be or become a source of nuisance or annoyance to the Vendor or his successors
*that the property conveyed shall not be used for anything except the erection and use of a single private dwelling house with outbuildings ancillary thereto the plans of which have been approved by the Vendor or his successors.

My neighbor is operating a childminding business from her home. She is ofsted registered. I'm uncertain as to how long she has run the business but certainly over 3 years. It has grown significantly and creating noise and traffic nuisance as the number of children are now in the region of 10-20.

I have the following questions:
1. Does the 2nd clause mean the property cannot be used for business purposes?
2. How do I enforce my restrictive covenant and are these enforcements generally successful?
3. Will Ofsted deregister her if I report to them that she is effectively operating illegally?
4. Do I contact the council to enforce the restrictive covenant?
5. Is her Professional Indemnity insurance still valid if she is operating an illegal business?
6. Am I entitled to demand that buildings erected and being used to look after the children be removed?

Thank you.

[des8]

As we are in the middle of the holiday period, it might be a day or two before any definite pointers are made.

In the meantime, just because a covenant is breached does not mean that the action is illegal, so neither Ofsted nor the council will be interested.

It would be for you, as beneficiary of the covenant to try and enforce it, if necessary via the civil courts.

To be enforceable a covenant must meet certain criteria, so how do you "hold" the covenant?

If created on or after 1 January 1926, and the land is unregistered, then it must be registered as a Land Charge under the Law Property Act 1925.
If created before 13 October 2003, and the land is registered, it must be registered in the Charges Register with respect to that land as per Section 50 of the Land Registration Act 1925.

I think (note uncertainty! ) that you would need to apply for an injunction for the breach to cease.


It is possible this would fail as the breach has been ongoing for three years, and likewise if you were to apply for the buildings to be demolished.

My first suggestion is that you discuss your concerns with your neighbour, and try and find a compromise.
If this fails and you end up in court it could become very expensive if it ends up in the Upper Tribunal (Lands Chamber)


PS why do you think she may have Professional Indemnity insurance? or do you mean Restrictive Covenant Indemnity Insurance?
:

[Smith999]

I wasn't expecting a reply until the year, so thank you for your prompt response!

Re how I hold the covenant: the property I bought holds the covenant over the burdened land. The covenant is stated on the neighbors Title Register under the Charges Register section - it was created pre 2003 but post 1926.

Re insurance, apologies, I meant to say Public Liability Insurance which I would assume one would need when running a business of this nature (although maybe not?).

What I would find disappointing if the time frame did become an issue is that one could then circumvent all such restrictive covenants by starting with a small operation, in this case 2 or 3 children, for a few years and then expand rapidly to 20 or 30 and claim that you've been doing it for a number of years so the restrictive covenant is now unenforceable despite the fact that the impact to the neighbors would be very different. It would also certainly discourage anyone from exercising any neighborly tolerance for the average child minder who only has a few children on site.

I agree your point on having the discussion first. I'm just trying to understand how strong my position is given the RC that I hold, in the event the matter escalates. Alternatively, I should think I could also seek to lodge a complaint with the council on the grounds that they need planning consent for a change of use of the property from residential to business given the scale of the business they are running.

[des8]

I wasn't expecting a reply until the year, so thank you for your prompt response!

Re how I hold the covenant: the property I bought holds the covenant over the burdened land. The covenant is stated on the neighbors Title Register under the Charges Register section - it was created pre 2003 but post 1926.

Re insurance, apologies, I meant to say Public Liability Insurance which I would assume one would need when running a business of this nature (although maybe not?).I understand Public Liability (PL) insurance is required by childminders etc and its existence would have been checked by OFSTED..IMO the fact she might be in breach of a covenant is unlikely to give the insurers a reason to void it, altho' they might if the business is operating without Planning Permission, if the permission is required. Her household policy might well contain a PL extention which covers her child minding activities automatically.

What I would find disappointing if the time frame did become an issue is that one could then circumvent all such restrictive covenants by starting with a small operation, in this case 2 or 3 children, for a few years and then expand rapidly to 20 or 30 and claim that you've been doing it for a number of years so the restrictive covenant is now unenforceable despite the fact that the impact to the neighbors would be very different. It would also certainly discourage anyone from exercising any neighborly tolerance for the average child minder who only has a few children on site. Each case will be decided on its individual merits and with the bare details available, and not hearing from the other side, it isn't possible to guess how a case might pan out.

I agree your point on having the discussion first. I'm just trying to understand how strong my position is given the RC that I hold, in the event the matter escalates. Alternatively, I should think I could also seek to lodge a complaint with the council on the grounds that they need planning consent for a change of use of the property from residential to business given the scale of the business they are running. Whether or not Planning Permission is required seems to depend on the attitude of your local authority. However you might like to read the attached https://www.childmindinghelp.co.uk/f...%20England.pdf
If she has more than a few children at one time it would seem that PP might be required.

Comments in red.
Why not ask the council planning department what their rules are without (at this stage) dropping your neighbour in the......?

[atticus]

You would need to bring an action for breach of the covenants and for damages for nuisance etc.

You may seek an injunction - you probably will not get an interim injunction as a holding measure pending the full hearing of the case, but you may get a final injunction if the judge rules in your favour. It is possible that even then the judge may award damages in lieu of an injunction.

You may also seek damages for the nuisances etc to date.