Restrictive Covenants · Report on Title scenario
Time and openness matter here in a way they do not elsewhere. Where a covenant has been openly broken for a long period without anyone with the benefit objecting, the law has long treated the covenant as having been released or waived. That is a real answer and not a complete one, because the next buyer's solicitor has to reach the same conclusion before they will advise their client to proceed.
From the e-ROT archive
This scenario is drawn from Report on Title material dealing with this specific circumstance.
Covenants in a transfer frequently require the written consent of a named party before building work, alterations or additions. A conservatory, an extension or a garage put up without that consent is a breach, whatever the planning position was.
Planning permission and covenant consent are entirely separate. Work can be perfectly lawful in planning terms and still be a breach of covenant, which is why both are checked.
If someone has objected to work at the property since you completed, what was reported to you about the covenants during the purchase is where the question starts.
Find out what should have been explained → WhenIBought.comThe principle conveyancers rely on is long established: where a covenant affecting land has been openly and uninterruptedly broken for a long period without objection from the person entitled to enforce it, a release or waiver is presumed.
Three words in that do the work. <b>Openly</b> — concealed work does not benefit. <b>Uninterruptedly</b> — a breach that was challenged and then resumed is a different case. And the length of time, which is a legal question your conveyancer will apply to the dates, not a number to take from a web page.
The Lexsure wording below applies the principle to a conservatory standing since 1998, and is candid that the conclusion is a view rather than a certainty.
Because your buyer's solicitor may not share the view, and the easiest way for them to protect their client is to ask for indemnity cover. The Lexsure wording anticipates exactly that.
If the risk is going to be insured eventually, the cheapest moment is now, and the right person to pay is usually the seller. Here the seller refused, which is common and is a negotiating point rather than the end of the matter.
The usual rule applies to the insurance: do not approach the person with the benefit of the covenant to ask whether they mind. That is what makes cover unavailable.
From the e-ROT archive
Report on Title paragraph
Now, in this case we believe you should be able to rely upon the legal principle based on case law, Hepworth v Pickles, it essentially suggests that if something has been in place for a long time without anyone raising objections, it might be accepted as lawful. In the context of your situation, this means that despite the conservatory being built without proper permission, its existence and uninterrupted presence since 1998 could potentially grant it legal rights to remain. …
Master precedent wording. This is current Lexsure Report on Title material, shown here in extract and reproduced exactly, including the run-on sentence. It states a view on one property's facts; it is not advice about any particular property and this page states no rule of its own.
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