Covenants on land

[Saints1]

Hi all,

 

Looking from some advice. I have looked through the forums on here but can't really find anything specific to my issue.

I have a plot of land that my parents own to which I am hoping to build a house on for myself. Full planning permission has been granted by the LA however when I have come to get the land transferred in to my name, my conveyancer has noted a covenant on the land from 1983 by the previous owners who are now sadly deceased. The covenant is between them and what was the county council at the time however this was disbanded in 1986 and the local authority took over.

The covenant states for no dwelling to be built upon the land which is exactly what I was hoping to do. 

 

I did consider taking out an insurance indemnity on the land/property however when I spoke to my solicitor they stated that effectively we have already give notice to the LA by applying for planning and so no insurance would be likely to accept it as they usually ask for no contact/notice with any interested party.

 

So my question is what are the possibilities of the covenant still being enforceable seeing that the primary persons involved are now deceased and the other party cease to exist. 

Do you think it would be reasonable to ask the LA for a deeds of release along with my parents, the now land owners?

 

Any help or advice is greatly received.

[nod]

It depends on the covenant 

and weather it would effect you 

What is the covenant 

[Spinny]

Sounds like this was part of someone's garden that they sold off and your parents bought - perhaps to extend their own land/garden - or perhaps as a speculative investment ?

Think maybe you need to come clean, presumably your parents know the back story here ?

[Mike]

2 hours ago, Saints1 said:

So my question is what are the possibilities of the covenant still being enforceable seeing that the primary persons involved are now deceased and the other party cease to exist.

I'd be fairly certain that it could be legally enforced by the successor to the successor to the original Council - i.e. the current Local Authority.

 

Not a situation I've had to deal with, but I imagine you'd have to make a good case to them about why they should discharge it. That could be harder as it was only drawn up in 1983, especially if the reasons for imposing it are still evident and / or likely to still be applicable.

[WisteriaMews]

Your Lawyer should be able to advise if it is still enforceable, or was a time limited, person specific covenant etc.... I'm guessing it is still enforceable which is why they brought it to your attention.

 

One suggestion - probably high risk - would be to have a pre-app meeting with the council and ask them about it. A lot will have changed in their local plan since 1983 and it may be that they are now supporting small site development etc... (It sounds like they are as they have approved your planning permission.) The risk obviously is that you will have alerted them to the covenant if they still say no.

 

Perhaps your lawyer can advise if these things can even be removed from deeds once they are in there?

Edited Thursday at 06:47 by WisteriaMews

[Redbeard]

12 hours ago, Saints1 said:

The covenant is between them and what was the county council at the time however this was disbanded in 1986 and the local authority took over.

 

I suspect that makes the LA a 'successor in title' to the County Council and could (I am guessing) make it tricky to argue that the covenant is no longer valid because neither party exists. Unless it said something to the effect of 'for the lifetime of either party'. But I am not a lawyer! I agree with @WisteriaMews. See what a solicitor thinks.

[Conor]

Your solicitor will almost certainly say it's enforceable. We had a 100 year old one on our property, the original document was barely legible, but we were still made to get indemnity policy against it. £400 for nothing.  You're best bet is to hunt down the successor and see if you can negotiate a release of the covenant.

[garrymartin]

Agree with all of the above. Planning Permission does not override the covenant. It's not uncommon for planning permission to be granted for something that cannot lawfully be implemented.

 

If the Local Authority is the successor, then they need to formally release you from the covenant. 

[nod]

We’ve a couple of covenants on our land That have been there since 1910 

Both are still there and active 

[jack]

4 hours ago, garrymartin said:

Planning Permission does not override the covenant.  

 

I appreciate that different council departments deal with council-as-beneficary covenants and planning, and that councils aren't responsible for considering covenants that give rights to third parties.

 

However, is the position not muddied if the same legal entity that has the benefit of a covenant over a property grants planning permission to build on that property? I'd at least run the argument that granting planning permission is tacitly waiving rights under the covenant.

 

I wonder whether there's any caselaw on this?

[Saints1]

I think the reason for the covenants was due to the fact the previous land owners (now deceased) had bought the land from the council at the time for a nominal sum. That’s when the then council (no longer exists) have put the covenants on that the land may only be used as a garden for the property to which the land owners have entered that agreement with them and as such the covenant has come in to existence between both parties. If that makes sense. 

[Alan Ambrose]

>>> if the same legal entity that has the benefit of a covenant over a property grants planning permission to build on that property?

 

Yeah, agree. I think I would take the insurance and proceed. Getting the LPA to explicitly remove the covenant may be impossible / slow / risky (the latter unlikely but not impossible).

[ProDave]

On 15/05/2025 at 14:35, jack said:

However, is the position not muddied if the same legal entity that has the benefit of a covenant over a property grants planning permission to build on that property? I'd at least run the argument that granting planning permission is tacitly waiving rights under the covenant.

We once had a property with a covenant "no building to be erected without permission of XYZ council"

 

I applied for and was granted PP by XYZ council and then building regs and building control sign off.

 

Later when we sold the property, the buyers solicitor contended that we had not got permission from the correct department of XYZ council.  It was solved by a cheap indemnity policy, but surely they should have been more specific if the covenant permission had to come from a particular department.

 

I often wonder how such a case would end if they ever tried to enforce the covenant.

[jack]

 

2 hours ago, ProDave said:

I often wonder how such a case would end if they ever tried to enforce the covenant.

 

I'm not sure whether it was on BH or elsewhere, but I have the vaguest of memories that there's been a case along these lines.

[Mike]

On 15/05/2025 at 15:35, jack said:

is the position not muddied if the same legal entity that has the benefit of a covenant over a property grants planning permission to build on that property?

No, I very much doubt it - Planning Permission is given or refused according to the rules of the planning system.

[ProDave]

8 hours ago, Mike said:

No, I very much doubt it - Planning Permission is given or refused according to the rules of the planning system.

You can see my point though?  All those years ago I had a covenant saying no building without permission of XYZ council.  I took that to mean if I gained planning through appeal, I would not have their permission, but if XYZ council granted planning I would.

 

The wording of the covenant did not stipulate which department of XYZ council should grant permission under the covenant.

 

We hear when cases go to court, it hinges on the exact wording of documents, not necessarily their intended meaning.  So I would love to know how such a covenant would be treated by a court if it did not state which department of the council needed to give permission, and one department of the council had.

[Spinny]

Looks like a case of your parents possibly hoping to make a killing by buying land that can't be built on and then gaining rights to build on it. Quite possibly providing a nice 1000% gain on the land purchase. I guess lot's of people try to make a buck that way, and it isn't illegal.

 

However what is the local impact ? Were there any objections to the planning application ? Might there be local residents completely unaware of the planning permission and that once they hear chainsaws going and see a building going up overlooking and devaluing their properties, church yard, village green etc will be launching legal action against you, either using the covenant, or right-to-light, or other means ?

 

Whatever the legal position (you provide no covenant wording), perhaps you want to give some consideration to what is ethical, moral, and reasonable to your fellow man alongside this. Just because you can do something in life doesn't mean you should do it.

 

Might not be so great to live surrounded by unhappy neighbours.

 

None of this may apply but you don't say.

 

Edited 2 hours ago by Spinny