Lifting a restrictive covenant

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    Lifting a restrictive covenant

    Has anyone tried lifting a restrictive covenant by applying to the Lands Chamber? How difficult is it and how much did it cost?
    The restriction prevents additional houses in the garden but I would argue it's obsolete as they've built several properties in their own garden.

    #2
    look for upper tribunal lands chamber flow chart T617.

    Comment


      #3
      The fees required are shown on the Flow Chart as £2,750, although they were less when I made an application a number of years ago because there was no objection.

      The fee paid to place an advert in the local newspaper when I made my application was £1,200 because of the number of words that had to be used in the formal notice.

      I chose to undertake my own case without instructing a solicitor, but I would have to assume that the number of hours it required to prepare all the documents would have meant quite a considerable legal fee.

      There was no objection from the District Council who had the benefit of a covenant imposed when the sitting tenant bought under the Right to Buy legislation, primarily because there was no property in the near vicinity that was owned by the Council when the application was made.

      It was a major point that all of the houses in the neighbourhood were privately owned, so that there was no diminishment in the value of the council houses owned in the remainder of the District.

      If there was to be an objection in your case then the costs will escalate due to the Hearing costs.

      What cost me less than £3,000 meant that the house built in the garden of the burdened property could finally be sold because it was already built and lived in when it became necessary to resolve the matter of the breach of covenant due to the prospective buyer's solicitor refusing to accept that the covenant was not enforceable, even though the council had granted planning permission for the additional house to be built.

      That planning permission had been granted was an essential requirement of Section 84 when making the application to the the Lands Tribunal under ground aa.

      I suppose the cost of a planning application will also need to be considered, as that would be necessary prior to making an application to the Upper Chamber to have the covenant removed or modified.

      Comment


        #4
        Originally posted by royw View Post
        Has anyone tried lifting a restrictive covenant by applying to the Lands Chamber?
        Before thinking about making an application you need to get a lawyer who understands covenants to investigate whether the covenant is enforceable.

        Comment


          #5
          Originally posted by Lawcruncher View Post

          Before thinking about making an application you need to get a lawyer who understands covenants to investigate whether the covenant is enforceable.
          Can you expand? Under what circumstances would it not be enforceable? I don't think any of the current owners know about it so it's unlikely they will try but presumably there will be problems when I sell any new build (unless I keep it 12 years).

          Pilman, is it something anyone can do or would you recommend using a solicitor?

          The flowchart is useful gordon999, thanks.

          There is another way round this, if I buy it instead of inheriting I'd pay £22k SDLT but there'd be no covenant as it's currently unregistered and not in the charges register.

          Comment


            #6
            Under what circumstances would it not be enforceable?

            That's a chapter of a book!

            Pilman, is it something anyone can do or would you recommend using a solicitor?

            Pilman, though not a lawyer, is not just anyone and has professional experience of property matters. It is not something I would recommend to anyone who has no professional property experience.

            There is another way round this, if I buy it instead of inheriting I'd pay £22k SDLT but there'd be no covenant as it's currently unregistered and not in the charges register.

            Are you saying that the covenant is not registered as a land charge at the Land Charges registry? If not, what are you saying?

            Comment


              #7
              A restrictive covenant is intended to benefit an identified parcel of land rather than the person who is named as the person transferring the land.

              Your last posting after Lawcruncher's comment about whether the covenant is enforceable seems to indicate that the property that was to have the benefit is now owned by a number of different people.

              It needs to be established whether the benefit of the covenant was correctly passed on to each parcel of land when each of those plots was sold by the original person who owned the land when he insisted on the covenant being imposed on the parcel of land being transferred that you now own.

              Your final sentence is quite confusing because if there is currently an unregistered property then the original deed of transfer will need to be provided to Land Registry on first registration by whoever has to do that, whether as a buyer from the estate of a deceased owner, or as the beneficiary of a will.
              Only when the property is registered will the restrictive covenants be shown on the Charges Register of a new title.

              That will always be shown, but whether there is still a property or properties with benefit of the restrictive covenant is not always known about.

              That is what needs to be investigated by obtaining copies of the registers of title for the properties now occupying the original parcel of land.

              in the event that a breach of covenant did occur, the person with the benefit attached to his or her land has 6 years in which to begin legal proceedings based on the damage caused to the property with the benefit, because a second house had been built on the burdened land.

              The claim for damages would be that there has been a diminished value of the property with the benefit, which appears to be so unlikely if so many other new houses have been erected.

              Comment


                #8
                Sorry for the confusion. The beneficiary was a large neighbouring property. It has since been turned into flats and several houses built in the grounds. I believe they would all be beneficiaries? So not easy to negotiate removal of the covenant. The burdened property isn't registered on the land registry. The covenant is in the deeds but it isn't on the charges register. As I understand it if the property is sold before the covenent is registered it is no longer valid. If it passes on through inheritance the covenant will be entered on the land registry on first registration of the property. Do correct me if I'm wrong. The lady who originally sold the land the burdened property is on died in the 1960s and I don't believe anyone knows about it now. There has been no breach of the covenant.
                I'm a little confused why I need to look at the title deeds of the beneficiary properties. Doesn't the covenant exist only in the deeds of the burdened land not in the deeds of the beneficent property?

                Comment


                  #9
                  The burdened property isn't registered on the land registry.
                  As I understand it if the property is sold before the covenent is registered it is no longer valid.
                  The purchaser will have to register the property. The original deed will have to be provided to Land Registry so that the restrictive covenant will then be referred to in the Charges Register since that covenant will run with the land forever.

                  As stated earlier when the original property with the benefit started to transfer parts of the property to other owners the correct legal procedure needed to be followed if it was intended that the benefit of the restrictive covenant imposed on the property transferred prior to1960 was to be included with each transfer of part.

                  Since the covenant was intended to prevent another house being erected on the transferred land, the fact that other development has occurred on the land that was to retain the benefit seems to imply that such a covenant is unenforceable under the circumstances that now exist.

                  That is why it needs to be considered whether there would be any effect on the original benefitted property if one more house was built close to it after houses and flats have been erected on the original property since the 1960's.

                  Comment


                    #10
                    It wasn't done correctly at the time because it should have been entered in the charges register but there is no entry for it. Because it isn't in the charges register I think if it's sold for money before LR registration the covenant is no longer valid. If it changes hands by assent then the covenant will be valid and registered on LR. Except I can't find where I got this information from now so perhaps I'm wrong.
                    I'm not concerned about breaking the covenant because I don't believe anyone knows about it but I would expect problems when I sell it. I would most likely sell a plot rather than build myself so that makes it a bigger risk for the purchaser.

                    Comment

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