How to deal with covenant issue

John RobsonResidential Property Manager, Milners Law,

Question: I am in the process of purchasing a bungalow in Tadcaster which has had the benefit of a conservatory extension constructed to the side and rear of the property. This was built circa 25 years ago. The bungalow was built in 1988.

My conveyancer has informed me that the legal title to the bungalow relating to when the developer first sold it off in 1988 contains restrictive covenants which remain in force and continue to affect the property. One covenant states that any extensions constructed must have the benefit of a written consent by the original developer for which a fee may be charged. The development company is still in existence and thus able to retrospectively impose this

covenant and may or may not consent to the conservatory extension.

The advice I have is to buy a breach of covenant indemnity policy at a cost of nearly £200 and not to approach the developer as if I do the developer will charge for the consent or may refuse to provide it.

Is it correct the covenant is still relevant and if so why should I pay a premium to buy insurance when the current owners should have obtained the consent when they built the extension?

Answer: This is a very common situation. Restrictive covenants are imposed for the benefit and protection of the remaining land contained in the developer's title and as each property was sold, the subsequent owners take the property with both the benefit of the covenants and subject to them.

An example would be if the subject property was the first one to be sold and the owner immediately constructed an extension which was not in keeping with the development or had an adverse impact on the adjacent houses, which could mean that the developer may encounter problems selling the other houses.

It follows that the restrictive covenants provide a degree of control in favour of the developer, over extensions and also to ensure the planning permission criteria is adhered to.

The transfer document selling off the property by the developer should contain a clause stating the restrictive covenants are “for the benefit and protection of the remainder of the land in the title”, which means the adjacent houses. This is a positive covenant that can be enforced by the owners of the adjacent houses even if the development company no longer exists .

For example, if the adjacent owners consider the conservatory extension causes an adverse effect on their property they may rely upon the covenant and refuse to provide their consent.

There are two options available to deal with the yout situation.

1. Approach the developer, if they still exist and to apply for retrospective consent. A fee will be payable. The consent will be conditional upon any relevant planning permission and building regulation approval having been obtained.

2. The quickest solution is to pay for the restrictive covenant indemnity insurance. Ordinarily, the seller would be asked to cover the costs of the policy premium. Planning permission would not normally be required if the size of the conservatory extension falls within permitted development rights. If there is a solid external door between the bungalow and conservatory and the roof is not of a solid or tiled construction it may also be exempt from building regulation approval. You can check this on the local authority's planning portal website.