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Would this restrictive covenant be enforced

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  • Would this restrictive covenant be enforced

    Hi,
    I'm new to this board and would like some advice please.
    I am purchasing a piece of land that has been split from another property.
    The original property had a house which has been demolished and has been divided into two and planning permission obtained to build two new dwellings (one on each piece of land). The owner of the land has almost completed his build.
    I have found out that there is a covenant restricting any permanent dwelling without the permission of the seller or his descendants.
    The covenant was imposed in 1929. The land was originally sold to two gentlemen to run as a market garden. Since then there have been many houses built on this land, but the covenant remains.
    Does anyone think that this covenant be enforceable?
    I have tracked down one of the descendants, (4th Baronnette of ************, covenant imposed by the 1st Baronnette).
    The surrounding neighbourhood has changed in such a manner that I think it would never be enforced and the descendants are probably not even aware of any such covenant.
    I was even considering contacting the 4th Bt without giving away too much info to see if he would give permission to build.
    I have also been obtaining insurance quotes against enforcement from my solicitors.
    There is obviously a risk involved, but the risk does seem small.
    Thanks in advance.

  • #2
    1: Do NOT contact the person who appears to have the right to enforce the covenant - that would blight your chances of getting indemnity insurance cover

    2: If the covenant has already been breached, more than 12 years ago, without any attempt at enforcement action, it is almost certainly a "dead letter"

    3: However, unless you are certain that the covenant is unenforceable (and can prove it) taking out indemnity insurance cover is a good idea in my view: it may be an unnecessary expense, but it should help you sleep easy ;-)

    I hope this helps
    This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum

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