There needs to be three things for a covenant to have any legal force:

1. The covenant needs to have been documented and entered on to the deeds of the land. Now days any covenants will usually be recorded on the English and Welsh Land Registry and automatically made available to any potential purchaser of that land.

1. The beneficiary of the covenant needs to be identified. The original beneficial could be long deceased and it can be very problematic identifying them. The ability to enforce a covenant can be handed over in one of two ways :-

- Gift, inheritance and blood line – the original beneficiary hands the ability to enforce the covenant whilst alive or on their death as part of their will and this will usually be to their blood decedents
The decedent(s) alive today may have no commercial/personal interest in the property.

- Running with the land – This tends to be the default. The ability to enforce the covenant runs with the land ownership and is passed automatically to each new land owner.  Taking the manor house example mentioned earlier – the owner of the manor house at any point in time is able to enforce the covenant on the occupiers of what were, at one time, the “new” houses.

1. Someone must be willing to enforce the covenant.  

Enforcement can be initiated with a clear letter setting out the responsibilities of the two parties and what specific behaviour should be changed.

If the initial letter is ignored then there may be no choice but to revert to the courts. The court process then presents two immediate challenges:-

a) It is very expensive – assume that the costs will escalate to between £25 to £75K

b) It is difficult to be assured of the outcome and the eventual “winner” is unlikely to recover more than 75% of their costs. The looser would be required to amend their behaviour, pay around 75% of the other parties legal fees and their own court fees.

The potential legal risks and the threat of high legal costs can often be enough to force compliance – or if full compliance is not immediately accepted the two parties can agree to discuss the matter and seek an understanding.

Covenants and planning

Cont..

Disclaimer

The information and opinions within this site are for information purposes only. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Local Planning Apps shall accept no responsibility for any errors, omissions or misleading statements on this site or for any loss which may arise from reliance on information contained within this site. No mention of any products, shall imply any approval or warranty as to the standing and capability of any such products on the part of Local Planning Apps or its clients.

© Copyright Geoff James 2016

.  

Copyright © 2016 All rights reserved. Created by Geoff James | Terms of use  |  Privacy& Data Protection policy

Planning reports for the area you care about - at your fingertips!!

Local Planning Apps >>Knowledge<<