It is never easy locating your dream home – in fact, sometimes it’s just easier to knock a house down and start again! In the current climate, refurbishment and even demolition of your current abode is definitely an option, and even if you have to live in a caravan or the garden shed in the meantime it might mean saving legal fees, SDLT and moving costs. Demolishing a residential property to build your dream home sounds like it should be a straightforward proposition. However, it could be costly if you haven’t done your homework to check if there are any covenants affecting the title to the property which prevents demolition and rebuilding or even restricts the type of property you can construct.
The dream property site
Imagine this – the dream property that you would like to purchase is subject to say a covenant that dates back to a 1905 Conveyance where the seller imposed a restriction against the use of the land which states that the buyer is “Not to build anything other than a single storey house, such house to be approved prior to construction by the transferor or his surveyor” . The Conveyance and any other deeds in relation to the property will need to be carefully scrutinised to determine whether or not the restrictive covenant continues to bind the land and affects future owners including you.
Restrictive covenants may also restrict the number or type of buildings that can be erected on the Property, require observance of a building line or restrict the height of buildings.
The land sold in 1905 to the buyer appears to have comprised all of the land owned by the seller at the time. It does not appear that the seller kept any retained land, nor are the covenants reserved for the benefit of any other land.
A restrictive covenant is a legally binding obligation and promise between two parties: the covenantor and the covenantee. The original covenantor voluntarily accepted the burden of the covenant; the original covenantee accepted the benefit of the same. The covenantee retains land which has the benefit of the restrictive covenant.
The relevant issue here is to what extent successors in title to the original covenantor are obliged not to breach the obligation and promise, and similarly under what circumstances any successors in title to the original covenantee may have the right to sue for breach of covenant; and whether it runs with the land and continues to bind the property
Once you have established the existence of a valid restrictive covenant you will need to establish the extent of any land with the benefit of it and the right to enforce it.
For a restrictive covenant to continue to be binding it must “touch and concern” or relate to the land owned by the person seeking to enforce the covenant. It must affect the land and not merely be of personal benefit to the original contracting party; and the covenant must actually benefit or preserve the value of the land allegedly with the benefit.
The benefit of the covenant also needs to have passed to the person seeking to enforce it and this is normally by annexation, assignment or if there was a scheme of development.
If you have purchased the property with a restrictive covenant such as one mentioned above, it may be capable of binding you.
Want to demolish and build your dream home? Get the title to the property thoroughly checked out before you buy or start planning anything so that you find out early on if the dream can become a reality or has to stay firmly in your imagination.