When buying a house, your conveyancing solicitor will inform you whether the property deeds contain any restrictions in them, dictating what you can and cannot do on the land. It is not at all true that a man’s home is their castle. Only if your deeds have nothing in them!
So what are these restrictions and what could they say?
The restrictions are called ‘covenants’ and they take two forms, positive and restrictive/negative. Both can, and usually are, binding on the land, and so if your conveyancing solicitor fails to tell you what they say, you may have a legal action against them when you move in because you cannot do something you had intended to do, and then you face loss as a result.
These covenants will have been imposed by a land owner to protect their own neighbouring land from the use of the property you are buying, probably years ago, but also quite recently, it just depends. Indeed, house developers when building new houses usually litter the deeds of new houses with a multitude of covenants, often unnecessarily, but the overall aim is to make sure the use of the houses can be restricted to keep them uniform. Each neighbour doing the same thing.
There are so many varieties of covenants against certain activity. For example:
- Not to create a nuisance or annoyance to the neighbours;
- Not to keep animals except domestic pets (i.e. no chickens or pigs);
- Not to erect any new structures on the land without consent (very harsh and one to always check for, as any building works you intend could be prevented).
One covenant that must not be overlooked is the one which states there shall be ‘no caravans or commercial vehicles’ allowed to be on the property. New neighbours may move in and proceed to automatically breach the covenant. This is quite common on housing estates, where it is desired to maintain a certain visual quality to the houses/vehicles.
Why are covenants breached? Several reasons:
1. The conveyancing solicitor overlooked telling the buyer about them. Each conveyncer is different in what they tell their clients about the content of the property deeds. Dynamic conveyancing solicitors will fully report to their clients on all the legal papers – why should the lawyer be the only one who gets to see them, they belong to the buyer after all – and usually in a very comprehensive and helpful written report, and some will do this after a meeting in person (to prevent future arguments of ‘he said she said’), but some may cut corners and ignore this crucial reporting step to make profit, or some may think the age of the covenant means it is no longer valid.
The age of covenants is rarely relevant to how enforceable they are. Fact. But worryingly this is still not appreciated by many conveyancers, often the same ones who think a conditional planning consent does not need to be produced simply after a certain age.
2. The buyer knows, but he intends to breach it anyway. Not a nice welcome to the neighbourhood admittedly, but some buyers consider if another neighbour has a caravan/white van ‘I can have one’. Unfortunately, you cannot be sure what ‘consents’ or procedures the other neighbour went through, and just because one has already breached it on his own deeds, this does not mean you are safe. Neighbours can come together and take action against you under a variety of methods, so ploughing on with an intended breach could cause more harm than good. Remember, if you embroil yourself in a dispute with a neighbour, not only can this be costly and very acrimonious, but you will have to disclose this at the point of sale, and it could knock £000s off your sale price, or maybe even prevent any buyer wanting to buy your house.