Observe and perform the covenants and conditions & Implied Covenants

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Observe and perform the covenants and conditions & Implied Covenants

    On my transfer it states:

    The Transferee hereby covenants with the Transferor that they Transferee and the persons deriving title under the Transferee will at all time hereafter observe and perform the covenants and conditions contained or referred to in the said Conveyance so far as the same relate to or affect the land hereby transferred and are still subsisting and capable of being enforced.

    On that conveyance


    On this website I came across a post from someone asking what this means the reply stated it means you have covenants on your title. The solicitor I have been getting advice from says this is just standard wording. On my registered title there is nothing to suggest the above.

    On that said conveyance it simply mentions an arrangement between all the 4 terraced properties that go in share with costs for maintaining a septic tank. None of the other titles mention covenants. On other conveyances it says drainage and not septic tank.

    On the pre-registration deeds to my property I have found the following wording from a 1927 Conveyance:

    So far as regards the remainder or reversion expectant on the equitable estate of the Vendor in the hereditaments hereby assured and the title to and further assurance of the same hereditaments after her death the covenants on her part implied by virtue of the Law of Property Act 1925 shall extend only to the acts and defaults of the Vendor and persons now or hereafter claiming through or in trust for her.

    When I look at the pre-registration deeds for the adjoining property, covenants implied are never mentioned.

    I have been here before with a problem I have and I am wondering if some of this wording relates to it. What I am being told though is it's all very general. Is this true?
    Many thanks

    #2
    It is fairly standard wording. It is a covenant required because the Transferor may still be liable to observe the covenants even after he has sold. A more usual form is to include after the words "hereby covenants" the words "by way of indemnity only".

    The provision you quote from the 1927 conveyance is a complete dead letter and of no concern to you whatsoever. The implied covenants referred to are those which were implied by section 76 of the Law of Property Act 1925 repealed by the Law of Property (Miscellaneous Provisions) Act 1994 which brought in different implied covenants for title.

    Comment


      #3
      Thank you lawcruncher,
      so just to confirm this is standard even if a property does not have any covenants?

      Comment


        #4
        Originally posted by first timer 123 View Post
        Thank you lawcruncher,
        so just to confirm this is standard even if a property does not have any covenants?
        Not really, no. If there are no covenants no indemnity is needed.

        Comment


          #5
          Thank you, I’m really sorry I’m not understanding.
          would this then suggest their are covenants on my title and this is standard wording for when there are covenants or are you saying it’s just standard wording regardless of whether they exist or not. I do believe the rest of the transfer mentions indemnity

          Comment


            #6
            There are three possibilities:

            The property is not subject to any covenants. If there are no covenants including a covenant with the seller to observe covenants is a mistake. The covenant to observe cannot have any effect and can be totally annoyed.

            The property is subject to covenants which can only be enforced against whomever is the owner at any time. A covenant by the buyer with the seller to observe the covenants is unnecessary because once he has sold the seller is not at risk if the covenants are broken.

            The property is subject to covenants which can be enforced against the person who entered into them after he sells. A covenant by the buyer with the seller to observe the covenants is necessary because once he has sold the seller is at risk if the covenants are broken. (It is in fact a bot more complicated than that because there can be a chain of indemnities.)

            The covenant given by the buyer should really be by way of indemnity only because once the seller has sold he will not personally be interested in enforcing the covenants for his own benefit. Belt and braces should restrict the indemnity to future breaches only.

            There are two types of land covenant: positive and restrictive. Positive covenants are not a burden on or interest in land. At one time they were never put on the register unless they were mixed up with restrictive covenants. However, since they are enforceable on a personal basis against the person who gave them an indemnity is required. Accordingly, they are now entered on the register but are only there for convenience. Older positive covenants may not be shown.

            Since your indemnity covenant refers to a conveyance and there are apparently no covenants referred to on the register, it is highly likely that the covenants are positive.

            Comment


              #7
              thank you so much for such a detailed response.
              Can I just pick your brains a little further please.
              You say it will most likely be a positive covenant if there is nothing on our title.

              Would the following make you think otherwise or not?

              We have found pre-registrations deeds which gives/grants our property a row and it also gives our neighbour a row over our land. It also gives us other rights/easements but they are simply missing from the register. There seems to be a lot missing from our register.

              The granted ROW our neighbour has is at the bottom of our garden.

              If you can imagine a straight boundary line separating the land of the two properties.

              The neighbouring property also has rights of water/drainage over our property. There is a strip of land on our side of that straight boundary that had the neighbours sewerage/drainage cover/access is located. Their mains water came into/drained from this strip.

              Also if we blocked this 'strip' of land, the neighbours wouldn't be able to then reach the ROW at the bottom of our garden.

              Would this mean it could at all be a restrictive one for these reasons?

              Comment


                #8
                If the rights are in the pre-registration documents they ought to be ought to be on the register. It is possible they are referred to indirectly. Is there an entry which says something like: "The property has the benefit of the rights set out in a conveyance dated***. (Copy filed)"?

                Comment


                  #9
                  The previous conveyance (1960's) from when we purchased in the 1990':
                  It describes the dwelling house with rights, easements & appurtenances.
                  TOGETHER WTH and subject to but/the benefit of an arrangement between the owners with
                  for the time being of the property hereby conveyed and the adjoining property hereby conveyed the septic tank/drainage which is common to all shall forever be maintained and repaired at the joint expense

                  It is only be looking at the previous, previous conveyances we find the rights granted at the pathway at the bottom of our garden that we and our neighbours have.
                  The only way the neighbour can access this same ROW is over our land.
                  Also another grant we find from historic deeds is the right next door have for water/drainage on this land.
                  I hope this makes sense and you may understands what it means.

                  Could we be missing another deed?

                  No copy filed, absoloutely nothing on our register

                  Comment


                    #10
                    Originally posted by first timer 123 View Post
                    Could we be missing another deed?
                    It seems like you could.

                    The clause you quoted refers to "the said Conveyance". The date of and parties to the conveyance will be referred to earlier in the transfer. Do you have the conveyance referred to? If you do not have the original it may be mentioned in a document called an abstract of title or a copy of it contained in an epitome of title. It is also possible that there is a separate sheet of paper setting out details of the covenants contained in the conveyance.

                    Comment


                      #11
                      We requested our A13 from the LR which attaches the transfer wording I stated above followed by...

                      and will indemnify and keep indemnified the Transferor and the estate and effects of the Transfer from and against all claims costs liabilities and demands in so respect of any future breach non-observants or non-performance thereof so far as aforesaid

                      Our a13 has documents listed starting from 1924 but have since found deeds from 1850.
                      On the A13 before 1924 it says Epitome of title followed by abstracts of title for 1924, 1927, 1952, 1959, 1991, 1995. Also a statuary declaration in 1924.

                      Our mortgage was with the Northern Rock who had our deeds. When they went into administration our mortgage went with Enram and then they collapsed and went to Helidore.

                      Everyone we have contacted are all stating they don't have our deeds.

                      The only way we have been able to piece some things together is we learned Northalleton's County Office has a registry of deeds which hold some copies.

                      Although we have been very lucky to find many of the conveyances from 1850 which describe the property along with the grants of row & water/drainage etc I mentioned before, I can't help but think our property did/does have covenants.

                      Will these abstract of titles/epitome hold they key?

                      As you say it is also possible it is contained on a separate piece of paper does that mean the chance of it being on any abstract/epitome could be quite slim.
                      Where would you even begin to try and find that paper if you don't mind me asking please?

                      Lastly, given what I've mentioned above what is your opinion on our property having positivie/restrictive/any covenants on our property?

                      Comment


                        #12
                        What are you trying to do or establish? What exactly do you have?

                        Your property is registered. The title to your property is the register at HM Land Registry and not any pieces of paper or parchment wherever they may be.

                        The aim of land registration is that everything important appears on the register. That aim is only partially achieved, but one thing you can be sure of is that if no restrictive covenants appear in the charges register of your title the property is not subject to them. Important things which may adversely affect the property but not shown on the register are known as overriding interests. They do not include restrictive covenants. If the transfer you signed contains a covenant for indemnity referring to a specific conveyance it would surprising if the conveyance did not exist. If there are no restrictive covenants on the register the explanation would seem to be that the covenants are positive. However, without seeing a copy of the conveyance it is not possible to say.

                        Comment


                          #13
                          TOGETHER WTH and subject to but/the benefit of an arrangement between the owners with
                          for the time being of the property hereby conveyed and the adjoining property hereby conveyed the septic tank/drainage which is common to all shall forever be maintained and repaired at the joint expense
                          Isn't that a positive covenant that can only be enforced if every new owner is bound by it?
                          That would explain the purpose of the first quote:
                          The Transferee hereby covenants with the Transferor that they Transferee and the persons deriving title under the Transferee will at all time hereafter observe and perform the covenants and conditions contained or referred to in the said Conveyance so far as the same relate to or affect the land hereby transferred and are still subsisting and capable of being enforced.

                          Comment


                            #14
                            On my neighbours A13 there is a document stating a land charge search with office copy D (ii) annexed dated 18/8/1952

                            A month later 23/9/1952 it memos a conveyance belonging to my property dated 14/5/1959

                            I am more and more convinced my property has covenants affecting it, but as there has been nothing added to my register I am trying to look back over all the pre-registration deeds I can source.

                            Does the above mean anything to you guys?

                            Comment


                              #15
                              The neighbours property directly steps onto this land before they can reach otheir own land. Their drainage/access cover etc is located on this section/our land. I can't help but believe this is a restrictive covenant for 2 reasons:

                              1. Our property would be restricted as it would not be able to block access to next doors drainage/access cover
                              2. The section of our land, that the neighbour has to use to reach their own land. If we blocked this section next door would not be then able to reach their own land.

                              Hope this makes sense.
                              I honestly believe so much has not been added to our register

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X