Legal complexity

As a general rule a house owner needs to be have been notified that there is a covenant before the house purchase takes place. In most cases this will mean the covenants are identified as part of the land search that occurs before purchase.  

If the owner can show that they were not notified of the covenant(s) before they purchased the house then they could use this lack of knowledge to argue that the covenant is unenforceable.

Courts will tend to interpret any covenant using “ordinary English” and refrain from “implied interpretation”. Whilst this may be beneficial, it can cause complexity as what constitutes “ordinary English” is not constant over the generations and meanings/intent do subtly change.

A covenant can be terminated if the original purpose of the covenant is lost. So taking the example above where a covenant provides for a route across private land to access the local church. If the covenant specifically stated “access to the church” and the church is no-longer present then the private land owner could argue (in court, if required) that the covenant is terminated. However, if the covenant simply stated “access across the land” then the presence of the church is not relevant. Success in court will depend very much upon the original wording used to form the covenant.

Covenants form a very complex area of English law. If there is any intention to enforce a covenant; or a house owner intends relying on an existing covenant being unenforceable then legal advice should be obtained.

The law regarding covenants is a legal quagmire. The whole area is a cash-machine for all solicitors and barristers involved.

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<<