Why am I haunted by a long-dead covenant?

Our legal expert Katharine Marshall advises how to get protection from restrictive building covenants
Legal cartoon
Question: I recently bought a house built in 1932. It comes with some restrictive covenants, most of which I don't mind, but one would prevent me building an extension of any reasonable size.

I need more space and would like to extend, and I also notice that a garage was added years ago with no complaints. My solicitor says there is probably no one left alive to enforce the covenant anyway, so all I need is planning permission.

Does the covenant still matter and can I challenge it if it does?

Answer: Restrictive covenants go with the land, not its owner, so it doesn't matter what happened to the original owners. You have to find out who is the current owner of the land that benefits from the restriction and approach them (a typical example would be a neighbour who is able to prevent you building something that would block their view).

However, there is a risk in doing this. If the beneficiary consents to your extension that's fine, but if they don't you may have scuppered your chances of getting insurance cover extension against this.

My recommendation is that you first consider obtaining a restrictive covenant indemnity insurance policy. This would protect you from a claim for breach of covenant. This will give you the peace of mind to go ahead and build the extension.

Alternatively, you could try to remove the covenant at a lands tribunal, but this could be expensive and time-consuming and you would have to prove that no one now benefits from the covenant.

What's your problem?

If you have a question for Katharine Marshall please email legalsolutions@standard.co.uk, or write to: Legal Solutions, Homes & Property, Evening Standard, 2 Derry Street, London W8 5EE.

We regret that questions cannot be answered individually but we will try to feature them here.

Katharine is a solicitor and director at Pitmans Solicitors (www.pitmans.com).

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