View Part 1 | View Part 3
Part II – Covenants & Easements
Whether you are extending your existing property or constructing a completely new property you will need to obtain planning permission and building regulation consents (unless exemption applies). There is a number of matters that you need to consider before committing funds to such a project but the following are frequently encountered in practice:-
You need to check the title to the relevant land to make sure there are no covenants that either need to be complied with or that prohibit your proposed development works. It is important to remember that the restrictive covenant regime is completely independent to planning and the fact that you obtain planning permission does not negate the requirement to comply with restrictive covenants. If your title has a burden of a restrictive covenant, you will need to consider the following options:
The first option to consider is a restrictive covenant indemnity policy, which will indemnify you against the cost of discharging the covenants, the relevant legal costs and any drop in the capital value of your land or property, if the covenants cannot be discharged. Such policies do not cover consequential loss. If a claim is made under the policy you have to act strictly in accordance with the instructions of the policy issuer, who may not be willing to settle a claim at an amount that you think is reasonable. The policy will be available only if no approach has been made to those with the benefit of the covenants (which would alert them to the situation) and once the policy is obtained the existence of it can never be disclosed to such party or the policy will become void.
The second option to consider is tracing the party with the benefit of the relevant restrictive covenants and negotiating a release of the covenants. It is important to check that the person is entitled to the benefits of the covenants and that they still own land that can benefit from them. Approaching a person with the benefit of the covenant will void any indemnity policy and therefore, you should seek professional advice before doing so.
The third option, if you cannot reach agreement with such party, is that you can apply to the Lands Tribunal for cancellation or modification of the covenants. It is important to note that only the Courts and not the Lands Tribunal can rule on the validity of covenants. This process can be lengthy and costly and should be the last resort option.
Those with the benefit of covenants can prevent works by way of injunction or can pursue a claim for damages.
You need to check your title carefully to make sure there are no third party registered easements or overriding interests that would prevent your building works. Please be aware that if for instance there is a right of way over part of the area that you are proposing to build on or a right to runs pipes, wires or cables under it then unless the easements specifically says that you can vary its route you cannot do so without agreement of the person with the benefit of the easement and this may prove impossible or expensive to obtain.
Injunctions to prevent the carrying out of works can be obtained.
This article is a Part II of a series of articles on extending or building a property and is intended to point out major areas of concern but in all cases it is sensible to take advice from a professional team including Chartered Surveyor and Solicitor, before beginning any works. In Part III we will explore Utility Routes, Party Wall Awards, Rights of Light, Environmental Issues and Project Managers.
For more information and advice on extending or building a property, call us on 020 8514 9000.
Article by Michael Bonehill.