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We have bought an ex-council house. It has the following covenant,

"(4) Not to alter demolish...
We have bought an ex-council house. It has the following covenant, "(4) Not to alter demolish or make any additions whatsoever to the property or outbuildings or to erect further outbuildings walls or fences without previously submitting plans showing such alterations aditions or erections and obtaining the consent of the Head of housing for the time being of the Council in writing thereto (in addition to any planning permission or building regulation consents) such consent not to be reasonably refused ...

My question is what "not to be reasonably refused" means? Following professional advice from an architect and structural engineer, we decided to demolish our semi- and rebuild as a detached, buttressing the other semi-. The other semi- still belongs to the council. Planning and building control were happy with this. As soon as the ALMO found out, they refused to work with us and asked us to ask for the council's consent immediately. After 2 months, they all but refused, and set 2 pages of extremely conditions. I think they are mixing up their duty re the covenant, with being the oners of the other property - the tenant of 40 years is completely happy with our ideas.
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Answered in 4 minutes by:
7/19/2013
Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 26,070
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Could you clarify the meaning of ALMO please?

Joshua :

For the avoidance of doubt is it the council that has refused consent under the covenant or someone else?

<span class="JA_chatAuthorName"Customer:

XXXXX. XXXX manages the properties on behalf of XXXXXX

Joshua :

Thanks. Is it the council or the management organsation that have refused consent?

<span class="JA_chatAuthorName"Customer:

Their letter gets a ot wrong. For example, they say it would be very unlikely that the Council would agree to the restrictive covenant being lifted in this case. We didn't ask for this; we asked for consent to proceed, as per the covenant.

<span class="JA_chatAuthorName"Customer:

a lot

<span class="JA_chatAuthorName"Customer:

It is the council

<span class="JA_chatAuthorName"Customer:

Can I email their list of requirements, or would this be seen on this website? They ask for confidentiality.

<span class="JA_chatAuthorName"Customer:

An example:

13) The work to our property has the benefit of a 30 year guarantee in a form approved by the Council underwritten by a guarantor approved by the Council.

Joshua :

Thanks. The provision of the saving clause "not to be unreasonably withheld" provides principally that the covenatee cannot refuse consent for reasons unconnected with the merits of the proposals. If the proposals have been granted planning permission is is very difficult for a covenantee to subsequently refuse consent. If they attempt to do so then it is for them to demonstrate in view of the grant of planning permission on what basis they consider each reason for refusal is reasonable.

Joshua :

(Please do not post anything confidential as this site is not secure).

Joshua :

The example you have given would not appear to be a reasonable condition. There is nothing in law that requires a 30 year guarantee. There is provision for a 10 year warranty from an organisation such as NHBC or Buildzone for a new build or substantive conversion but the council cannot seek to impose measure beyond the requirements of building regulations under the covenant.

<span class="JA_chatAuthorName"Customer:

When I spoke with the Director of XXXXXX, he said to seek the consent before submitting plans, in order to save money. He also previously set out a list of demands, and as the letter reflects them, it feels as though he is leaning on the council to "ward me off".

Joshua :

You may consider replying to the council reminding of them that they cannot unreasonably withold consent under the provisions of the clause and as confirmed in the case of Rickman v Brudenell-Bruce, [2005]. You may consider responding to each point they raise setting out your view and asking them to justify on what basis they consider each requirement to be reasonable citing lawful authority where appropriate.

<span class="JA_chatAuthorName"Customer:

Who would adjudicate what is a reasonable condition?

Joshua :

You may wish to consider further advising that regrettably if the council is unwiling to be reasonable on the matter particularly in light of the fact the same council has granted planning permission for the build, you will have little option but to sue for a declaration that the covenant has been unreasonably denied or alternatively if you have no plans to sell you could simply advise the council that they will need to sue you for breach of covenant if they believe they have a case.

Joshua :

This issue will be raised if and when you come to sell however so it is wise to consider resolving the matter significantly prior to going on the market so a sale is not delayed.

Joshua :

The county court will hear the case if it goes to court and decide what is reasonable using the "reasonable man" test - whether the average person would consider a condition reasonable in the circumstances. Usually on the basis that planning permission is granted consent under the covenant should follow unless the covenantee can show it is reasonable not to do so.

Joshua :

Is there anything above I can clarify for you any further?

<span class="JA_chatAuthorName"Customer:

What damages could be awarded for breach of covenant if they were to win? I also worry that we may be allowed to proceed, but the court make very expensive requests. Looking at your earlier response (3:23), it feels as though the council is refusing for reasons unconnected with the merits of the proposals.

<span class="JA_chatAuthorName"Customer:

I haven't applied for planning yet, although planners were enthusiastic. Now, though, if we apply, people will be on the look out for this in order to reject it. Hmm .... it feels as XXXX did this on purpose.

<span class="JA_chatAuthorName"Customer:

Would it be easier to apply to get the convenant removed through the Land tribunal.

Joshua :

Planning and covenants are distinct issues and planning does not grant consent for a covenant and vice versa. The two should in theory not effect the other. If you feel the council's planners are acting unreasonably you can of course appeal to the inspectorate who will decide the matter purely on planning grounds.

Joshua :

You would likely consider not bothering too much with the covenant until you obtain planning permission because you could spend a time on it only to find you have planning refused.

Joshua :

Once you have planning confirmed then you can consider focusing on the covenant though you may consider pursuing negotiations under the covenant whilst planning is going through.

Joshua :

You could apply for the covenant to be removed but I suspect you would struggle with that as it is unlikely to satisfy the conditions for removal particularly given the not to be unreasonably witheld provision.

<span class="JA_chatAuthorName"Customer:

They have also asked:

1) You will cover all the costs of temporarily rehousing XXXX and his family (including the Council's costs in managing the transaction). These costs are to be met on an indemnity basis and the Council will not be required to explain or justify any reasonable claims that are made by or on behalf of XXXXX;

Is a "reasonable person" likely to agree with this? The tenant isn't worried.

<span class="JA_chatAuthorName"Customer:

(Apologies - I have realised I should have redancted that - can I edit it?)

Joshua :

Is XXXXX a secure tenant under an AST?

Joshua :

I can ask that the thread is locked for privacy once we are done or Names are XXXXX XXXXX privacy as you prefer.

<span class="JA_chatAuthorName"Customer:

He's lived there 40 years. I don't know, but suspct so. How would I find out? What is AST?

<span class="JA_chatAuthorName"Customer:

Would your advice be to proceed to planning and building control?

Joshua :

As he is likely to be a secure tenant based on what you sayyou will have to rehouse him in alternative accommodation - he cannot just be forced out as he has a secure tenancy. I would not agree to the councils provision but there is provision in statute for this and you will need to ensure you handle the eviction via a solicitor qualified in landlord and tenant law to ensure that you end the tenancy correctly. You would also wish to look at this before you spend too much money on planning to ensure there are no issues with removing the tenant. It is not easy to end tenancies though demolition is a ground to do so providing tenant is rehoused.

Joshua :

Given the secure tenant this is not a straightforward project and you will wish to ensure you fully understand the costs of rehousing and dealing with the tenancy before you spend too much time and money

<span class="JA_chatAuthorName"Customer:

Sorry - miscommunication. We have bought one of the semis. He lives in the other semi, and has for 40 years. He is completely happy with our plans. He wouldn't care about moving out whilst the demolition of our half were taking place.

Joshua :

OK - I was concerned that this was becoming overly complex for you. He only needs to move out if your works make the property uninhabitable or dangerous to inhabit. Your architect can give a his opinion in this respect. You would appear to have a somewhat overzealous council officer on your hands

Joshua :

Is there anything above I can clarify for you?

<span class="JA_chatAuthorName"Customer:

Lots, but I'm not sure it would be fair. If we wanted to employ you, how would I contact you, and what are your rates?

Joshua :

Unfortunately I am not able to accept private referrals fro this site however if you have further questions you can either post them and ask for me in the first line or click on my profile to specifically ask me. I will be happy to help where I can.

<span class="JA_chatAuthorName"Customer:

I feel that we need a good legal expert, with experience of this very specific type of law, to reply to the Council's letter. Going from the Law Society's website may be a bit random. How would you advise I go about doing this?

<span class="JA_chatAuthorName"Customer:

So, if I were to reply to the Council, I would:

<span class="JA_chatAuthorName"Customer:

-a explain what unreasonably withheld means

<span class="JA_chatAuthorName"Customer:

-b refer to Rickman v Brudenell-Bruce, [2005]

<span class="JA_chatAuthorName"Customer:

In the mean time, apply for planning permission

<span class="JA_chatAuthorName"Customer:

completely separately, re the Party Wall Act 1995, is it worth taking the risk of going ahead without seeking the council's approval, as owners of the other semi-? The parents' neighbours have recently done so (althoguh they were detached properties), with no comeback.

Joshua :

The legal 500 will give you links to some of the best firms and solicitors that practice in any given area:
http://www.legal500.com/c/london/real-estate/property-litigation

<span class="JA_chatAuthorName"Customer:

Sorry - I'll correct that. I have asked XXXX if we could work on this together, and they refused. So, I should have said "without the council's agreement".

Joshua :

I think planning should be your primary focus with the covenant secondary in the hope you can reach agreement but if you can't on obtaining planning you can seek a declaration from the county court if the council continue to be unreasonable.

Joshua :

You will need to deal with the Party Wall Act but again I would suggest this would be something to look at later as it is redundant until you have planning

<span class="JA_chatAuthorName"Customer:

Thank you for your help - it has helped immeasurably.

<span class="JA_chatAuthorName"Customer:

We just didn't know where to turn for advice

Joshua :

A pleasure. I am sure you will get there - believe it or not this doesn't sound too bad compared to what obstacles stand in the way of many developments.

<span class="JA_chatAuthorName"Customer:

What would you asses the % chance of success as?

Joshua :

Providing you get planning I cannot see that you will not be able to overcome the covenant issue. The council have limited grounds in general terms as they must act reasonably and acting beyond rights provided for in statute are going to be difficult for them to demonstrate as being reasonable.

<span class="JA_chatAuthorName"Customer:

Have a good weekend. Good bye, and thank you.

Joshua :

And to you. If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Brei-CatMod41474.7986563889
Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 26,070
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Verified
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Satisfied Customers: 26,070
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