Posted on 30th November 2018
What are Covenants?
Covenants are important matters, contained in the property’s title, that affect the land and can be either positive or restrictive.
They can be found within the Official Copy of the Register of Title. The Official Copies may contain a schedule which will outline the covenants for your solicitors in Lancaster Lancashire to study. The Official Copies may also refer to specific documents which contain covenants. Your solicitors in Lancaster would then request copies of such documents to gain clarity on what the covenants are and what they mean for their client.
Restrictive: Restrictive Covenants restrict what can be done at the property/on the land. Common examples include the restriction of any trade or business being carried out, not to keep any pigs, poultry or non-domestic animals at the property, not to carry out, or permit anything to be carried out, which may be or become a nuisance, annoyance or disturbance.
As you can see, the covenants affecting certain properties can cover a vast range of items and can vary property to property.
Your solicitors Lancaster will, however, always outline any restrictive covenants affecting the land and, in particular, the potential restrictions that are to be placed upon the buyer. For example, The buyer is purchasing and would be parking her business van on the driveway of the property. There is a covenant contained within the title which restricts any form of advertising or parking of an advertising vehicle at the property, therefore, the work van may breach this covenant. This could affect whether or not the buyer proceeds with the purchase, therefore, highlights the importance of the buyer being informed such covenants.
Positive: Positive covenants differ, from restrictive covenants, in that they require that something is done, as opposed to restricting what can be done on the land. They impose an obligation on the owner of the land to perform some form of act. An example may be to erect and forever maintain a boundary wall. As you can see, this is placing a specific duty on the land owner which is to be adhered to.
MG Legal, your solicitors in Lancaster, would always outline any such covenants in order that the buyer is aware of any potential obligations that may be placed upon them in the future. Your Lancaster law firm would also want confirmation that the same have been complied with to date, in order that the buyer is not detrimentally affected by an increased obligation to ensure compliance.
Covenants are legally binding and should be adhered to. As part of raising enquiries, your Lancaster law firm will always enquire with the sellers as to whether any breaches of covenant have ever occurred, by the sellers or their predecessors. This is to ensure that the new owner of the property is protected against any potential future claims in relation to breach of covenant.
If your solicitors in Lancaster are made aware of any breaches that have occurred, they will require the seller to take one of the following steps:
Remedy: Your Lancaster law firm will revert back to the seller’s solicitor and ask that the seller takes the necessary steps to immediately remedy the breach, if possible, and forward the appropriate evidence of the same.
Indemnity insurance: The most common form of action, indemnity insurance. Your solicitors in Lancaster will ask that the seller’s solicitor forwards a suitable draft indemnity insurance policy to cover against the breach, for approval. If the same is approved, this will be put in place upon Completion, at the expense of the seller, to cover the new proprietors. See our blog on Indemnity Insurance for more information.
Retrospective Consent: The seller may revert back to the person with the benefit of the covenant in order to obtain retrospective consent. For example, if there is a covenant which states the property is not, without the prior written consent of the Council, to be used for the keeping of a motorcar, and there has been a driveway installed for the keeping of a vehicle, this is, in effect, a breach of that covenant. The seller may revert back to the Council for such consent in order to rectify the breach. An important point to note, however, is that a common requirement of indemnity insurance policies, is that no approach has been made to those in connection with the breach. In order to avoid invalidating any potential indemnity insurance, in the event that retrospective consent is not granted, the Lancaster law firm may advise that indemnity insurance is the best course of action.
Removal of the Covenant: A further course of action, albeit very rare, would be to apply for the covenant to be removed from the title. This would, however, only happen in exceptional circumstances with valid reasons for the same to be removed.
For more information on covenants, and their meaning to you, contact MG Legal, your nearest solicitors. Our Lancaster law firm are able to provide expert advice on any conveyancing query you may have. Get in touch with your solicitors in Lancaster today at firstname.lastname@example.org or on 01995 602 129, and we would be delighted to assist.
MG Legal - Solicitors in Lancaster
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