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If a covenant restriction and / or lack of building consent…

Customer Question
If a covenant restriction...

If a covenant restriction and / or lack of building consent was covered by an indemnity insurance 11-12 years ago at the time of purchase, should not a copy of the insurance have been passed to the owner by the conveyancing solicitor? If not, what are my options after this amount of time has lapsed with regard to cover when I sell the property on?

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

Our house is sold subject to contract and the buyers solicitor has raised the issue of the restrictive covenant. I recall a verbal version of an indemnity insurance being taken out but believe this was for building regs permission being absent, so I phoned my solicitors of 2006 who stated they only have to keep records for 6 years but would look and get back to me? That was days ago and I am being pressed now on the subject from the buyers solicitor.

Lawyer's Assistant: Where is the house located?

Reading Berks

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Only that this is with regard to an extension (sun room and utility room) built by our predecessors sometime between 1980 and 1997. You could also let me know what I am committing to by allowing you to conenct me??

Submitted: 7 months ago.Category: UK Law
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Answered in 56 minutes by:
1/18/2018
Solicitor: Aston Lawyer, Solicitor replied 7 months ago
Aston Lawyer
Aston Lawyer, Solicitor
Category: UK Law
Satisfied Customers: 10,800
Experience: LLB (HONS) Over 23 years legal experience specialising in Property law and Wills/Estates
Verified

Hi, thanks for your enquiry.

If you are happy with my eventual answer (I only get paid when you rate my answer), you will be charged the $44.28 which you have lodged.

A restrictive covenant indemnity policy is of course different to a lack of Building Regulations indemnity policy, so would you know which policy your Buyers Solicitor is asking for and what policy you think was taken out when you purchased?

I look forward to hearing from you.

Al

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Customer reply replied 7 months ago
I am still asking those questions of my solicitor and have yet to hear back from her, but I think it was a Building Regs indemnity and that they missed the restrictive covenance in the deeds at that time?
Solicitor: Aston Lawyer, Solicitor replied 7 months ago

Hi, thanks for your reply.

Well, to answer your question, you should have been sent any indemnity policy by your Solicitor at the time of your purchase unless you had a Mortgage and the Mortgage Lender required the policy to be sent to them (some Lenders will have asked for it and others won't have). If you have a Mortgage, your current Solicitor can send a letter requesting any Deeds which the Lender may be holding.

Us Solicitors are only under a duty to hold a client's file for 6 years, so if the old file has been destroyed, I'm afraid you may not have much joy in locating the existing policy, if it is not with any Mortgage Lender. All Insurance Companies would be happy to issue a duplicate copy if the original has been lost, but your issue will be knowing which Insurance Company issued the policy.

On a side point, even if the original policy can be located, you are likely to have to pay a top up charge so the level of cover matches the current sale price (as the current policy will only have cover up to the price you paid for the property 11-12 years ago). Depending on the Sale price, a new Building Regulations indemnity policy is likely to cost £30-£100 and a restrictive covenant policy is going to cost between £100-£200.

I hope this helps and sets out the legal position.

If so, I would be grateful if you could rate my answer in the top right hand corner of your screen.

Kind Regards

Al

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Customer reply replied 7 months ago
I am now not happy with the response received because as a result of very little research I have discovered a caveat that applies. I clearly stated the works happened between 1980 and 1997 which makes them in excess of 20 years old and that the case of 'Hepworth vs Pickles' applies.The rule in Hepworth v. Pickles [1900] 1 Ch. 108 which provides that if a breach of a restrictive covenant has been ongoing for 20 years or more, then the covenant cannot be enforced against that particular breach. It does not mean that the covenant does not exist as it can still be used against other breaches. However, once a breach has been openly and uninterruptedly in existence for 20 years or more the covenant is considered to be waived or released in respect of that breach. So the person having the benefit of the covenant cannot enforce it against the person who has breached it.A useful piece of knowledge I'm sure you will agree?
Please can we ensure I am not charged.
Solicitor: Aston Lawyer, Solicitor replied 7 months ago

Hi, your initial question never asked for clarification of the law concerning restrictive covenants and the 20 year rule, , so I am not sure how you expected me to give you this information?

Al

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Customer reply replied 7 months ago
Hi Al, you appear to be clouding an issue here, when I think it is clear that I did not know about any 20 year rule at the time of asking, so would not have been able to mention it? However, I do feel it should have been included in your response to my query. If you do not, then please clarify which part of "what are my options after this amount of time has lapsed with regard to cover when I sell the property on?", is unclear on this?
Regards
Al
Solicitor: Jo C., Barrister replied 7 months ago
Jo C.
Jo C., Barrister
Category: UK Law
Satisfied Customers: 71,559
Experience: Over 5 years in practice.
Verified

I have read over the information you have been given

It is accurate and I can add nothing.

As my colleague says , you did not mention restrictive covenants.

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Customer reply replied 7 months ago
I thank you for your input but am at a loss to believe you cannot see that I stated "If a covenant restriction and / or lack of building consent....." right at the front of my text and as a title. So, let me apologise if neither you nor your colleague cannot understand that my terminology 'covenant restriction' referred to 'restrictive covenant', but I am sure most other people would have done. I hope this concludes the debate.
Solicitor: Jo C., Barrister replied 7 months ago

...

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