removing restrictive covenant

[torata]

A complete beginner type question about restrictive covenant in title deeds (from 1903): do these restrictive covenants apply in perpetuity or can they be overturned, e.g. by planning permission?

We have (semi-detatched) house, owned freehold, which we are thinking of selling to developers, who have expressed an interest in extending / demolishing and turning it into flats.
The house was once a single detatched house, but was in fact separated into 2 semi-detached houses, and one of those houses also split into 1st floor flat and a leasehold 2&3rd floor flat.

One of the covenants is that only one private detatched house can be built on the land, and it has to be used for residential purposes.

What impact does this covenant have on possible development of the land? (All three households are interested in selling to the same developer.)

Looking at Clitheroe Kid's answer to a previous question on restrictive covenants
https://www.lemonfool.co.uk/viewtopic.php?f=2&t=31527&hilit=restrictive+covenant&start=20
it looks like it's a question of the 2 freeholders (each of the semi-detached houses) getting a 'deed of release' each. Is that about right? Is it something that we would leave to the developers, or something to do in advance?

Thanks in advance

torata

[Clitheroekid]

A complete beginner type question about restrictive covenant in title deeds (from 1903): do these restrictive covenants apply in perpetuity or can they be overturned, e.g. by planning permission?

They can't be overturned by planning permission. Planning permission is in the area of public law - i.e. law that governs the relationship between the state and its citizens, for example criminal law. Restrictive covenants are governed by private law - the law that governs relationships between individuals. And never (or rarely) the twain shall meet.

Consequently, you can get planning permission to build a house on a piece of land but - as many people have to their great cost then discovered - find that when you come to build it a person with the benefit of a restrictive covenant pops up and says you either can't do it at all or you can only do so if you pay them a large chunk of money.

But as I said in the linked post, the law of restrictive covenants is one of the most complex areas of law there is, and most lawyers struggle with it. It's therefore completely impossible to say without far more information and actually looking at the title documents whether or not the covenant is likely to impede development.

In view of the fact that it's already been breached in a very material way the likelihood is that it's obsolete, but where there are potentially hundreds of thousands of pounds at stake the only solution is to obtain proper, paid for legal advice.

... it looks like it's a question of the 2 freeholders (each of the semi-detached houses) getting a 'deed of release' each. Is that about right? Is it something that we would leave to the developers, or something to do in advance?

Even if you knew who had the benefit of the covenant (which you probably don't) this would be just about the worst thing you could do. A very common solution to restrictive covenants is to take out title insurance against the possibility of them being enforceable / enforced. However, insurers invariably stipulate as one of the conditions for issuing the policy that there must be no contact at all with anyone who may have the benefit of the covenant.

[torata]

Thank you, CK
That's very informative.

torata