The Lemon Fool

Hi folks, can anybody comment on the following covenant:

''The purchaser hereby covenants with the Vendors their heirs and assigns
that he will not during the lives of the Vendors or the survivor of them or within twenty-one years from the death of such survivor use or carry on or permit to be used or carried on in or upon the said pieces or parcels of land or any building now or hereafter to be erected thereon any trade or business whatever or permit the same to be used for any purpose other than as private dwellinghouses and will not within such time as aforesaid erect any other building on the said piece of land or make any alterations or additions to the same without the written consent of the Vendors.'

The property being purchased is a freehold terrace house about 100 years old. Absolutely nothing special about it. A carbon copy of thousands of others dotted up and down the country. I have asked my solicitor for her comments. Our intention is to make alterations to bring it into the 21st century. This covenant appears to potentially bar us doing what we want to do to our freehold property - assuming we go ahead with the purchase. I am actually concerned about this purchase and would like other thoughts in case my solicitor gives me a stock reply to the effect that it's a covenant and you have to abide by it.

Thanks

Passinthru

passinthru wrote: I am actually concerned about this purchase and would like other thoughts in case my solicitor gives me a stock reply to the effect that it's a covenant and you have to abide by it.

Thanks

Passinthru

My solicitor's stock reply to a builder's covenant on a house that was approaching 50 years old requiring that the boundaries be delineated using hedges was "Well, whose going to enforce that?" The front hedge went about 15 years ago and nobody's batted an eyelid and several neighbours have followed suit.

As I read it the covenant only applies during the lives of "the Vendors" and for 21 years after the last of them died. You will need to check, but almost certainly the Vendors will be the people who sold the land on which your house and its neighbours were built 100 years ago.

So you can be reasonably sure that the covenant no longer applies.

passinthru wrote:during the lives of the Vendors or the survivor of them or within twenty-one years from the death of such survivor

As patrickmacqueen correctly points out, the covenant is only enforceable during this time period.

If the house is around 100 years old it's virtually certain that both of the vendors died well over 21 years ago. In any event, there is a fallback position that a covenant like this implies that the vendors would not withhold consent unreasonably, so that even if the covenant was still technically enforceable it probably has no teeth.

However, if it's of any concern the simplest solution is just to obtain a restrictive covenant indemnity policy. This basically insures you against the cost of defending any attempt to enforce the covenant. It wouldn't be very expensive, and the vendor would probably agree to pay for it just to get the sale through.

Though I would have hoped that your own solicitor would have advised you in these terms anyway.

Thanks for the prompt replies. My solicitor has confirmed almost exactly your knowledgeable comments. A big relief to have a few other opinions though.

Passinthru