Clause On Deeds

[Mike25]

If someone put a clause on deeds when they sold land, if that person dies does the clause still stand?

[Peter Pedant]

Your question is - is the clause personal or does it pass with the land ?

If the clause is a covenant - which is probably is - then a negative covenant will be enforced by whoever last sold the land. First done in Tulk v Moxhay 1848 and that is why Leicester Sq is still a garden - go and look at the plaque ! Negative cov - do not build , for example

If the covenant is postive to maintain a party wall or maintain a road
then it may well not be - but may be and is the subject of a long series of cases decided on the equity principle of 'he who takes the benefit, takes the burden' [ so if you use the road you may have to maintain a bit of it ]

sudduv had to do an exam on this a few months ago
and I passed !

If the sale is leasehold, then yes to both in short

[Mike25]

Peter, your answer confused me. Not sure what type of clause it is, my grandad sold the land with the clause now he is being contacted and asked to take it off.

[woofgang]

and is your granddad dead?

[Mike25]

NO

[jeffreyrfegan]

My grandfather sold a plot of land behind this house 30 years ago, part of the conditions of the sale was no buildings where to be build on the site so he had a clause in the deeds introduced that nothing could be built on the land. The owners of the land have made contact my grandfather recently as they want my grandfather to remove the clause from their deeds. We are awaiting their solicitors letter.

As Peter says I think a negative covenant was enforced. My question is , Is my Grandfather the only person who can get the negative convenant removed from the deeds. He is 90 this year , what would happen if he was to die , would the negative covenant remain on the deeds for ever ?

[FredPuli43]

Let us simplify that a bit. A covenant is simply something demanding that you do, or don't do something.It is found in deeds for the sale of land and controls the new owner. It will be repeated when the land is registered with the Land Registry.

And it normally controls the activity of every successive buyer; they are bound by it; unless what it demands is completely impossible for them to perform.

What does this clause say?

Some covenants are not enforceable unless the seller retains an affected interest personal to himself. For example my family sold land for houses with covenants that no shed was to be in the garden without permission; well, I could, in theory, object because I retain adjacent land and am 'affected', and a succession of careful solicitors have asked me whether the shed of the house their client is buying had my or my predecessor's permission. My feeling is that if I didn't own land next door, they really needn't ask, because I could not be 'affected' (This, I think was the first reason for Leicester Square gardens still existing; the seller retained an affected interest) Different considerations apply when an estate has covenants in the interest of al the householders or flat owners.

[Mike25]

Fred, are you saying my grandad could be taken to court to remove the clause as he wouldn't be affected by the clause now?

[FredPuli43]

Sorry, mike, was typing while you answered. Yes, the 'owner' of the covenant and his successors can agree its removal . So if the original beneficiary, your grandfather dies, his heir has the same rights, as do their heirs , and so on.

[Mike25]

Is the judge likely to agree with the new owners? My grandad has no connection to the land now that it was sold 40 years ago!

[FredPuli43]

My short answer is that the planning authorities make the decision, and nothing can stop them granting permission if they are so minded, whatever covenant and whatever the situation. But the solicitors on the buyer's side want to see how much objection from your grandfather they are going to get, since it could affect planning, and how much he wants for relinquishing the covenant, being practical. That's all. He couldn't sue them if they went ahead, got planning permission and built

[FredPuli43]

That, incidentally, is why I sold a field without a covenant not to build. What I did do was say that, if the field was built on at all in the next 50 years, I would take half the profit of the development. Don't suppose I will be around by even 40 years, but that is still enforceable by my heir.

[woofgang]

Fred that is deeply crafty and a good idea!

[FredPuli43]

Yes, woofgang, mindful of the problems with 'no building' clauses and of selling open land which might be built on years later, I always ask for what we call 'overage', a cut of the profit between the value as undeveloped and the developed value. The argument is then always about how much and for how long; 50 years and 50 per cent is on the high side. Everybody should, unless the developer comes with a plan for instant development, in which case you charge the full price for the developed land. If he doesn't get the planned development permission within a set time, the deal falls through and you revert to overage.

[cassa333]

If your grandad has no connection to the land he may not have a choice.

If he is canny he will get in quick and sell the 'right' for a sum of money and have the clause removed.

Get and do it before the other pasrty realises he can no longer enforce the covenant...

[FredPuli43]

The real problem is that planners, and governments, are not particularly worried about covenants or even green belt, whether the original owners or their successors could seek an injunction or not.

[themas]

Mike - you said "Fred, are you saying my grandad could be taken to court to remove the clause as he wouldn't be affected by the clause now?"

My answer is no - this is not a Court matter. If it is a restrictive covenant (see my answer to your other thread) & no longer meaningful because your granddad has no connection to the land then the purchasers can do whatever they like (with planning permission etc.). They would probably get indemnity insurance. But if it is the other type of covenant I described (which Fred has also covered in this thread) then your granddad still has a potentially valuable interest.

Fred - you said "He couldn't sue them if they went ahead, got planning permission and built". How come? It seems tome that that is what he'd have to do. If it's the type of covenant you describe it is still valid, & they would have breached the terms by building without his agreement. Planning is irrelevant - anyone can getting planning (or at least apply for it) on anyone else's land but they can't make use of the planning consent without the say so of whoever has an interest in the land.

[cassa333]

The covenant doesn't have anything to do with planning. It is to do with the owner of the right so even though you can get planning permission on the land that doesn't mean you can go ahead.

You could legally get planning permission to build in my back garden but as the owner I wouldn't let you so is a waste of time untill you negotiate with me.!!


Let them get planniong permission and then hit them with a hefty bill for permission to build or for removal of the clause.