Retained land - restrictive covenant

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    Retained land - restrictive covenant

    Hi

    I'm in the process of buying a property which has a restrictive covenant.

    I basically can't build another dwelling on the land and I'm restricted to certain m2 for any extensions...Which is fine as the m2 they have allowed is large enough for what I want to do.

    The issue is with them "retaining land" they've highlighted in red the plot the house sits on and said that they are retaining the land.

    here's what's written in the TP1:

    "Rights Reserved for the benefit of other land
    There are reserved out of the Property for the benefit of each
    and every part of the Retained Land the following rights:

    14.1 The right to free and uninterrupted passage and running
    of Services to and from the Retained Land through, over and
    along any Service Media now or at any time in the future laid in,
    over or under the Property

    14.2 The right of support, protection, way, water and light,
    eaves, gutters, drains, sewers, spouting pipes and other rights
    in the nature of easements, quasi-easements or privileges
    existing or used and enjoyed by the the Retained Land over the
    Property as at today's date

    14.3 The right for the Transferor and all persons authorised by
    them at the Transferor's sole cost, to enter so much as is
    reasonable of the Property on reasonable prior notice (save in
    emergency when as much notice as practicable shall be given)
    with or without workmen, materials and specialist services, to:

    14.3.1 (where it is reasonably necessary to do so) inspect,
    clean, maintain, alter, repair, rebuild or redevelop the Retained
    Land including a right to erect scaffolding notwithstanding
    interference with any light or air enjoyed by the Property
    provided that such interruption is only temporary in nature and
    duration; and/or

    14.3.2 repair, maintain, renew, relay, upgrade or remove any
    Service Media exclusively serving the Retained Land;
    Provided That the persons exercising this right must cause as
    little legal nuisance damage and inconvenience as reasonably
    practicable in doing so and make good promptly any damage
    caused to the Property to the reasonable satisfaction of the
    Transferee"

    And this part:

    Other
    17.1 The Transferee and his successors in title shall have no
    right of light or air over the Retained Land and shall not be
    entitled to any easement or right which would restrict or
    interfere with the free use of any Retained Land for building,
    development or any other purpose

    17.2 The Transferee shall not be entitled to the continuance of,
    nor shall he by virtue of this transfer or of the Law of Property
    Act 1925 Section 62, acquire any easement right privilege or
    advantage over or in respect of the Retained Land or be
    entitled to the benefit (which benefit is exclusively reserved to
    the Transferor) of or to enforce or to have enforced or to
    prevent the release or modification of any covenant agreement
    or condition entered into by any person with the Transferor or
    his predecessors in title to the Retained Land save insofar as is
    specifically granted in this transfer.

    17.3 Unless the right of enforcement is expressly provided, no
    third party has the right to enforce any terms of this transfer
    under the Contracts (Rights of Third Parties) Act 1999 but this
    does not affect any rights which are available apart from that act

    I'm buying a freehold house, this stuff above like I'm buying a leasehold.

    I'm meeting my solicitor on Monday but would really like to get my head around this before Monday...it's doing my head in and any help would be appreciated.

    Thanks in advance

    #2
    This posting seems to be confused about what is the "retained land" which has the benefit of the reserved rights set out in the TP1.

    The use of a TP1 signifies that there was a transfer of part of a registered title.

    The part retained will be shown on the title plan that has the original title number shown on it, with the part transferred outlined in green with the new title number that was issued to the transferred land shown on the amended title plan.

    The transferred land's title plan will have a red line drawn around the full extent of the land that was identified on the plan attached to the TP1.
    This will be the title plan with the new title number shown on it, and the register of title with this new title number will list all those reserved rights as transcribed above.

    In simple terms there will be one original title showing the extent of the retained land and one new title showing the extent of the transferred land that has now been removed from the original area of land.

    Comment


      #3
      pilman, thanks for your reply.

      The title number on the retained land and the property I'm buying is the same. The seller is trying to retain the land the house sits on.

      Is this normal?

      Do you think I should go ahead with the purchase?

      Comment


        #4
        Sounds more like you are buying the retained land.

        My feeling is that you either don't understand which is the retained land, or you have a very unusual situation. I think you need to talk to your solicitor, with all the paperwork available in full, rather than rely on the partial picture given to this forum, who are, in general not legally trained (although I believe one recent poster is).

        Incidentally, the bit that seems to be causing you issues doesn't contain covenants.

        Comment


          #5
          The title number on the retained land and the property I'm buying is the same. The seller is trying to retain the land the house sits on.
          Trying to understand your situation and can only think that this is the first time that part of the original title is being offered for sale.
          Is this correct?

          Answer that question and it should be possible to offer more advice prior to you speaking to your solicitor, so that you can ask the right questions before deciding whether to proceed with this purchase.

          Comment


            #6
            Yes I think it's the first time this property is in for sale.

            A friend of mine who is a solicitor but not trained in this field thinks the retained land means the neighbouring property which the seller also owns. The title number indicted on the form is the same for the retained land and the property I'm buying.

            Tbh, my solicitors are rubbish, if I wasn't already half way through this purchase with them, I'd change firms.

            Anyway, thanks for your help

            Comment


              #7
              You just need to be clear that the land identified on the plan attached to the TP1 form is the land offered for sale and all the other land in that original title will become the retained land that will continue to be owned by the seller.
              That is why it is necessary to have all the reserved rights set out in writing in the TP1.
              Previously as owner of all the land the Transferor did not need anyone's permission to use his own land any way he wanted, but after transferring part of this land that is when he needs to make it clear what things in on or under the part being transferred will need to be used. i.e. drains cables or water pipes that run under or over the part being sold that feed the part being retained.

              This has to be mentioned so that it is clear to the Transferee, who becomes the new owner, that these services are to be used by the part transferred and the part retained. When section 4.2 of the TP1 mentioned all "ways" in the list of things that are being reserved, that is when you need to verify if a right of way will exist over the property you intend buying as soon as you complete the transfer.

              Section 4.2 is saying that all existing rights used by the legal owner will become legal rights for the benefit of the retained land.
              It is important to fully understand exactly what detrimental impact that may have in the future if the Transferor can use part of the land transferred by reserving a wide range of legal easements.

              Comment


                #8
                Thank you Pilman.

                The land outlined in red on the TP1 is the land the house I'm buying sits on.

                The title number for the retained land and the property I'm buying are the same.

                If it was the neighbouring property, the "retained land" would make sense to me.

                Maybe they've made a mistake on the TP1 and highlighted the wrong property.

                I'll raise the points you made above with my solicitor. Hopefully he pulls his finger out!!

                Comment


                  #9
                  Sorry to say that you still haven't understood what is hown on the TP1.

                  You will be buying the land edged in red, which apparently is a house with some land attached to it.

                  As soon as the transfer is completed and registered with Land Registry that is when the house and land edged red will be given a brand new title number.

                  The land retained will be all the land shown on the original title plan but there will be new title plan issued with a green line drawn around the part transferred to show that this land has been removed from the original parcel of land that will retain its existing title number.

                  The retained land will comprise all of the land in the original title, excluding the part transferred, and that land will have the benefit of all existing rights that were used by the owner when it was all one parcel of land.

                  The main one that could be of concern is a right of way over the land you intend buying that can be used to access any part of the retained land.

                  The pipes and services under the land you are buying will not be a problem if these lead to the retained land, nor will most of the items referred to in clause 4.2, such as water spouts or gutters overhanging the new boundary.
                  You just need to be aware that all rights are being reserved and a right of way can be included unless it is absolutely clear that one is not to come into existence as soon as the two parts of the original title are separated.

                  14.2 The right of support, protection, way, water and light,
                  eaves, gutters, drains, sewers, spouting pipes and other rights
                  in the nature of easements, quasi-easements or privileges
                  existing or used and enjoyed by the the Retained Land over the
                  Property as at today's date

                  Comment


                    #10
                    Thank you for breaking it down for me..Lol

                    I understand now, you've put my mind at ease. I was going crazy.

                    Thanks again

                    Comment


                      #11
                      Having read the above post I have a similar situation, basically, we have lived in our property over 25 years, over a year ago the land that surrounds our property (Farm Land) the now owner has applied for planning for a Chicken Broiler unit 200 metres away from our property! which we are in the process of trying to stop!!
                      We have read our deeds a Covenant that's on our property it reads that on-field xxxx no noisy offensive or dangerous trade or pursuit shall be carried out or annoyance or danger to the vendors or their successors in title or to the owners and occupiers of the Retained Land or any part of it.
                      Now it's the Retained Land that foxing everyone even my Solicitor is saying we are not the retained land?? but on the plan when the farm and land were sold the map shows the land edged in red and the property (ours) which is the land and property the sellers kept at the time till we bought it! that is our property! So surely we are the retained land? and are Covenants worth the paper they are written on? any help I'd be most grateful.

                      hope I have made sense. H

                      Comment

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