The hospital closed 40 years ago. Its "successor" 30 miles away has no record of any covenant, and says it has no assets anywhere near us. It will investigate further if we pay £1,000 to cover its initial legal costs. Can we save the money, ignore this old covenant and press on with our planning application?
Answer: The enforcement of restrictive covenants is very complex and you must take specific legal advice but I hope the following general guidance will be helpful.
If you press ahead, get planning consent and build, you may be in difficulty if someone pops up who is entitled to enforce the covenant.
To establish if it is enforceable by a successor in title to the local hospital, various matters must be considered, for example, the precise wording of the covenant, the extent of land affected, if the covenant has been correctly registered, and whether the benefit has passed to the subsequent owner.
The covenant does not say you cannot build but that you must first seek permission of the local hospital. You may be able to get indemnity insurance to cover a possible breach in case the covenant is enforceable but you will have to disclose that you have contacted the successor hospital. If the original covenant did not refer to the successors in title of the local hospital, you could argue it was personal to the local authority and is therefore not now enforceable.
I cannot emphasise enough that you must take advice from a solicitor specialising in this area of the law before parting with any money.
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Fiona is a partner in the residential real estate team at Thring LLP (www.thrings.com).
These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.