UK Property Law
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Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.
Do you have a copy of the title document you can upload?
This thread is not secure so privacy is not guaranteed. I can let you have my email address if you prefer? The only downside is that communicating by email is treated as a "premium service by the site" but I can specify the minimum fee which is about £3 so as not to substantively increase the cost to you. Do let me know if I can assist any further.
I'll send over an offer in a few moments...
Many thanks - my email address should be visible. If you can kindly drop me an email with the document attached?
Many thanks. For the avoidance of doubt, the covenants you refer to are those set out in entries 1 and 2 of the charges register?
Thanks. There are only a number of ways in which restrictive covenants can be removed. The only relevant ways here will be by way of an express release from the beneficiary of the covenant or by way of an application to a Upper Tribunal under the Law of Property Act 1925 for an order that the covenants are released on the grounds they are obsolete because of a change n character of the burdened land and/or that they are impeding the reasonable use of the land.
However such application can take upwards of 3 months even if uncontested and much longer if they are contested.
The wording of the covenants does not satisfy the test laid down in Crest Nicholson v McAlister so as to give rise to statutory annexation. In other words the wording of the coventnats at entries 1 and 2 does not appear sufficient to bind you as a successor in title because in particular it dos not identify the land which is to benefit from the covenant. Accordingly they are unlikely to bind any persons beyond the original parties at this point because the above decision decided that in order to bind successors i title, amongst other things the wording of the covenant had to identify the benefiting land. Acordingly an application to the Upper Tribunal is unlikely to be worthwhile as the covenants are no likely to be enforceable.
If you are considering significant development at the property you may wish to consider a bespoke indemnity insurance policy from a broker such as CLI or GCS which will cover any potential minor risk and smooth out any issues a buyers solicitor may raise. Such a policy should be obtainable for a one off premium of low to medium triple figures for a single dwelling development with incrementally higher premiums for each additinal dwelling.
You will have noted there are further restrictive covenants contained in a deed at entry 3 of the charges register which would need to be examined to confirm what further covenants bind the land in addition to the above.
Is there anything above I can assist you with any further?
Only parties who claim to benefit from the covenant can contest the claim. Members of the public can given evidence as part of any proceedings but the Tribunal cannot extend the covenant to benefit parties that do not already benefit from it.
The wording of the covenant does not coform to the tests laid down by Crest Nicholson. You are of course correct to sat that the Mill is mentioned, but it is not mentioned as being the land that benefits from the covenant. Rather it is referenced as being the subject of the covenant. In order for a covenant to be beinding upon successors in title the covenant has to be expressed to be for the benefit of land with a sufficient description to be able to readily identify it. Neither of these covenants contains such preambles. It would be a departure for any court to infer that the covenant suffices the tests laid down in Nicholson but there is always a risk with regard to any litigation, hence my suggestion that you consider an indemnity insurance policy which may be a better use of your time and money than an application to a Tribunal for removal of a covenant which action would likely preclude your being able to obtain indemnity
May I clarify - £40K or £40m?
Do you have an estimate of development costs? I assume you have checked the other deed I refer to to confirm what further restrictive covenants are in place? Have you obtained a quote for indemnity insurance?
Thanks. I have repled to your email.