New here - Questions about restrictive covenants

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    New here - Questions about restrictive covenants

    Hi all,

    I have come across this forum by browsing for answers on restrictive covenants. I have seen helpful posts from users such as 'Lawcruncher' and 'pilman' (just to name a few) and thought this would be a good place to get some clarification.

    I am considering buying a property with restrictions. I want to demolish the existing property and erect a new residential house in it's place (planning permission has been granted). I have some questions about this.

    Details of the restrictions are below (text in bold are areas of particular concern).

    Some questions...
    Should I write to the Vendor (i.e. The British Land Company Limited) for approval and what are my options if they don't approve?
    Who can enforce a restrictive covenant?
    If the Vendor does not actually have a benefit (i.e. they have sold all nearby land next to the plot of land), is their approval required?
    Should I seek the neighbours approval and what are my options if they don't approve?

    Looking forward to your responses.

    Many thanks,

    Turquoise

    -----

    C: Charges Register

    This register contains any charges and other matters that affect the land.

    1) A Conveyance of the land in this title and other land dated 15 July 1885 made between (1) The British Land Company Limited (Vendors) and (2) Richard Box (Purchaser) contains covenants details of which are set out in the schedule of restrictive covenants hereto.

    Schedule of restrictive covenants

    1) The following are details of the covenants contained in the Conveyance dated 15 July 1885 referred to in the Charges Register:-

    THE Purchaser (as to the land hereby conveyed) for himself and his assigns did respectively covenant and grant with and to each other and as to the Purchaser also with and to the owners or owner of any other land to which the benefit of the said stipulations was attached that the covenantors and all persons claiming under them respectively would thenceforth observe perform and comply with the said stipulations so far as the same related either to the rights or to the duties of the Purchaser or persons claiming under him in respect of the said land thereby conveyed and that nothing should ever be erected fixed placed or done upon the said land as to which they respectively covenanted in breach or violation or contrary to the fair meaning of the said stipulations but their covenant was not to be held personally binding upon either the Vendors or the Purchaser or any or person except in respect of breaches omitted or contained during their his or her joint or sole seizin of or title to the land upon or in respect of which such breaches should have committed.

    Copy of Stipulations contained in a Conveyance dated 15 July 1885 and made between The British Land Company of the one part and Richard Box of the other part.


    Schedule of restrictive covenants continued

    1. Fences. Each Purchaser was forthwith to make and afterwards to maintain a good and sufficient fence next the roads and on the sides of his lot marked "T" within the boundary.

    2. Building Lines. Nothing was to be erected on (inter alia) lots 202- 205 within 10 feet of any road except fences and those not more than 6 feet high.

    3. Description of Buildings Private dwellinghouses only should be erected on (inter alia) lots 202-205. Dwellinghouses with shops for ordinary trade purposes may be erected on (certain lots specified not including lots 202-205) No house shop or other building should be erected until the elevations had been submitted to and approved by the Vendors.

    4. Value of buildings. No house should be erected on (inter alia) lots 202-205 of less value than £300. The value of a house is the amount of its net first cost in materials and labour of construction only estimated at the lowest current prices.

    5. Trades etc. prohibited. The trade of an innkeeper victualler or Retailer of wine spirits or beer except the retailing in bottle to be consumed off the premises or under the usual grocers or confectioners licenses was not to be carried on upon any lot. No building should be erected or used as a shop workshop warehouse or factory and no trade or manufacture should be carried on upnon any lot (except certain lots not including lots 202-208) nor should any operative machinery be fixed or placed upon any lot. No noxious or offensive trade business or manufacture should be carried on upon any lot. No hut shed or caravan house on wheels or other chattel adapted or intended for use as a dwelling or sleeping apartment nor any shows booths swings or roundabouts should be erected made placed or used or be allowed to remain upon any lot and the Vendors or the owner or owners of any of the lots to which these stipullations relates may remove and dispose of any such erection or other thing and for that purpose might break fences and forcibly enter any land upon which a breach of this stipulation should occur and should not be responsible for the safe keeping of any thing so removed or for the loss thereof or any damage thereto.

    6. Roads etc. All the ways so far as the same belonged to the Vendors were public highways and each lot included the soil of half the way to the extent of its abuttal thereon. Nevertheless (as between themselves and the Purchaser) the Vendors reserved the right to form and make any of the roads at such levels with such gradients and in such manner as they might approve and for that purpose to make cuttings or embankments upon any lot and deposit thereon or remove and dispose of any surplus earth or to make sewers or drains in any highway or to repair any such works. No Purchaser should obstruct the passage of other owners or the Public by the deposit of any materials on the roads or footpaths in front of his lot or remove or disturb the soil or surface of any way except for the purpose of repairing the same or laying gas water or drain pipes from his lot to the mains in any of which cases the road should be made good and the repair consolidated by the Purchaser to the satisfaction of the Vendors.

    NOTE: No T marks affect the boundary of the land in this title. The land in this title forms part of lots 202-205.

    #2
    If you have read some of my posts on covenants you will probably have seen that I have stated that it is a complex area which takes up at least a chapter of a book. Indeed, there are some fairly substantial volumes which deal exclusively with land covenants.

    Without going into all the permutations here, the first point to make is that (rather unusually for a conveyance executed in 1885) the vendor is still around and is indeed a component of the FTSE100. That means that, assuming the covenant is otherwise enforceable (which on the face of it seems to be the case) your question of whether British land's consent is required if they have no interest to protect becomes very relevant. Whilst the neighbours cannot give consent, it is possible they have the potential to enforce the covenant if building proceeds without consent.

    Bearing in mind the considerable expense involved in building a house and the fact that doing so without consent will be a defect in title, no way should you proceed without either getting British Land's consent or a restrictive covenant indemnity policy. As to insurance, no insurer on the ball should issue a policy given that British Land is still around. Further, insurance does not cure a defect, it only pays compensation if a loss is suffered.

    You can of course solicit an opinion from an expert, which is probably going to mean obtaining a counsels opinion, but I have to doubt you will get a definitive answer. You will probably be told you have the option of going to the tribunal to get the covenant declared obsolete or to the court to get a declaration that the covenant does not apply to a second dwelling. Either will prove expensive.

    You can of course suggest that the seller applies for consent.

    Comment


      #3
      Hi Lawcruncher,

      Thank you for your response.

      Yes, I agree that it is a complex area. Even trying to understand the language in some of these covenants is a hurdle for me!

      Between getting consent, getting insurance, or applying to the tribunal/court... it seems like getting consent from British Land would be ideal.

      I am assuming if British Land says "no" or nothing, then I should not commence works even if British Land has no interest to protect. Is this correct?


      Thanks,

      Turquoise

      Comment


        #4
        Originally posted by Turquoise View Post
        I am assuming if British Land says "no" or nothing, then I should not commence works even if British Land has no interest to protect. Is this correct?
        Not recommended.

        Comment


          #5
          Thanks again.

          I will see if I or the seller can obtain consent.

          Thanks,

          Turquoise

          Comment


            #6
            No house shop or other building should be erected until the elevations had been submitted to and approved by the Vendors.
            Since that is the only restrictive covenant that will effect your intended building of a new house as a replacement for an existing house, it is clear that the Vendor does need to approve the design of the elevations of the proposed new dwelling.

            It is also probable that in 2021 such approval should not unreasonably be refused, especially if a local planning authority has already approved the design.

            Comment


              #7
              Hi pilman,

              Thank you for your response.

              I have often seen other covenants stating what you suggest, i.e. "consent should not be unreasonably withheld" (or words to that effect).

              By contrast, this covenant appears quite prohibitive. All I can hope for is that British Land will act reasonably in light of the circumstances.

              Thanks,

              Turquois

              Comment


                #8
                A Conveyance of the land in this title and other land dated 15 July 1885 made between (1) The British Land Company Limited (Vendors) and (2) Richard Box (Purchaser) contains covenants details of which are set out in the schedule of restrictive covenants hereto.
                The Vendor in 1885 was a private limited company.
                Looking at Companies House there is a company with a similar name.

                "British Land Company Public Limited Company (The)
                00621920 - Incorporated on 26 February 1959

                York House, 45 Seymour Street, London, W1H 7LX"


                This public limited company issued shares when it was incorporated in 1959, so it is not the same company referred to in the 1885 conveyance, because that private limited company no longer exists.

                As such there is legal authority that a non existent company would be unable to grant permission for a covenant to be observed, which would be why the covenant is now unenforceable.

                Comment


                  #9
                  Originally posted by pilman View Post
                  The Vendor in 1885 was a private limited company.
                  Looking at Companies House there is a company with a similar name.

                  "British Land Company Public Limited Company (The)
                  00621920 - Incorporated on 26 February 1959

                  York House, 45 Seymour Street, London, W1H 7LX"


                  This public limited company issued shares when it was incorporated in 1959, so it is not the same company referred to in the 1885 conveyance, because that private limited company no longer exists.

                  As such there is legal authority that a non existent company would be unable to grant permission for a covenant to be observed, which would be why the covenant is now unenforceable.
                  Something odd is going on!

                  I just checked the above at Companies House and it is as you say. However, when I looked yesterday I kept getting referred to BL EUROPEAN FUND MANAGEMENT LLP which has the same address. Puzzled, I tried Wikipedia (British Land - Wikipedia) which says the company was founded in 1856 which is why I said that in post 2. So far as I can see, the company's own website does not say when it was founded.

                  A possible explanation is that there was a company restructuring back in 1959, a technicality that Wikipedia might not consider important. On restructuring what can happen is that a new company, say ABC Company Limited, is formed and the assets of the old company, say XYZ Company Limited, are transferred to it. As soon as the transfer has taken place the companies swap names so that as far as most people are concerned there is continuity with the name XYZ Company Limited continuing. However, anyone looking carefully at official documents would note the change of company number. If something like that happened then the company which existed back in 1856 no longer exists and if it does not the covenant is, as Pilman says, a dead letter.

                  What is required is an investigation. The obvious starting point has to be to approach the company now known as The British Land Company Public Limited Company.

                  Comment


                    #10
                    Thanks again.

                    As far as I can tell, The British Land Company Public Limited Company appears to have been 'established in 1856'. This is what is cited on their company documents and just about everywhere when browsing.

                    E.g.:
                    https://www.britishland.com/sites/br...rip-scheme.pdf (please see footer note)

                    I am assuming they wouldn't assert this if it wasn't true, but I would like to be wrong here!

                    I will see if I can get clarification from British Land.

                    Thanks,

                    Turquoise

                    Comment


                      #11
                      I see it says "Established in 1856". That at least confirms there is continuity of some sort, and not a case of one company being founded in 1856 and going out of business and an entirely new company with the same name being formed years later. However, the legal point that the company formed in 1856 and the company formed in 1959 look like being two distinct entities is crucial. You need to find out what happened in 1959. A strong possibility is that the company was admitted to the stock exchange in that year and that that required restructuring.

                      Comment

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