Singing Pig

All,

am i right i  thinking that restrictive covenants within conveyancings, can only be enforced by the person or organisation who placed the restrictive covenant

so if they are dead, or the Company is dissolved the covenant dissappers as anything meaningful as it will not/cannot be enforced

i have a house with land that a restrictive covenant was placed back in 1992 by the builder, not to allow more building on the land, however this Company was dissolved on 31/12/02 and thus no longer exists

i'll run this by my brief, but just wanted a heads up from anyone else in the know

Rik

Hi Rik

I've had this a couple of times in the past. I believe it is possible to have the covenant removed if you can prove that it's no longer enforceable, but this takes time. I think from memory the solution we've used is an insurance policy to insure against the highly unlikely risk of someone popping up and trying to enforce the covenant. This is pretty common, so your solicitor will sort for you.

Hope that helps.

Regards

Andy
www.bmvwarehouse.co.uk  

Generally the covenant will be related to the property and listed on the deeds - so it relates specifically to the property and whoever owns that property going forward and not the person who actually put the covenant in place.

In your case you can get planning for another house but if anyone tries to get finance on this to build it teh covenant will be picked up by the lenders solicitor or the solicitor of the potential buyer

 You can get indemnity insurance but you must get it before you discuss with anyone about trying to get the covenant removed as if you have started this conversation then the insurance will be null invoid.

In our experience it very much depends on how the covenant is drafted. We've had 2 recent experiences where we encountered 2 similar coveanants which actually turned out totally different. One allowed us to build in conflict with covenant, as 'owners' of the covenant were a disolved company and nobody has ownership. The other covenant on a property we were offering on meant that despite the covenant originator being defunct, the neighbouring property owners have the right to enact the restrictions.

We have used insurance a number of times but it does as others suggest have some restrictions. It will have to be a case to check out with your solicitor

thanks folks,

so it seems to a bit of both, yes and no!

i can see the potential difficulty with finance if the covenant is still there, i also get the indemnity insurance, we have had to use this before for other matters.

i received a copy of the conveyance that has this restirction in it, i was hoping that because the originator no longer exists (dissolved company) that it is no more than a legal excercise to have this restriction removed as there is no-one to challenge it's removal.

i am seeing my solicitor tonight, i'll run it all by him

Rik