Restrictive covenants - ex-council properties

[SimonH2]

We're looking at moving and have our eye on a house that is probably the nearest thing to what we want that will ever be in our price range. Specifically it's got a very big garden, though the house itself is an ex-council 2 bed semi that's had an extension on the back - and it has off-street parking
At the side there is plenty of room to dig our and build a garage and the large workshop I want (DIY only, not for business) - and being sloping ground I reckon I could make most of it flat roofed and put the garden back on top of it, not to mention that it would definitely be permitted development thanks to the quirks of how "ground level" is determined.

However, when I've looked on the Land Registry, I find that a good chunk of the garden is a separate plot bought from the council some time after the house. And both parts have restrictions on them.
The house and original garden have a reference to a conveyance from when it was sold under right to buy. I'd assumed tis would be the same as ours (our current house is also an ex-council house) - but it turns out that while our conveyance says :

Not without the consent of the Council first obtained (the granting of which shall not be unreasonably withheld but may subject be to reasonable conditions):-
(a) ... or erect ... outhouse shed garage hoarding fence wall or any other building structure or erection of whatsoever nature.
(b) to make or permit or allow the making of any external structural alterations to the Premises or any part thereof.

To my reading, that means they have to have some reasonable objection in order to stop me doing something.
The house we're looking at has different wording, and it says :

Not without the consent of the council first obtained (the granting of which shall be at entire discretion of the council and subject to such conditions as they think fit ...

That's a different kettle of fish, and to me means that they can refuse without having to have any grounds other than they don't want to allow it.


As for the extra bit of land, that's even more interesting. The Land Registry has this as a restriction :

The Purchasers hereby covenant with the Vendor as follows:-
...
(ii) To use the said property for gardening purposes only
(iii) Not to erect any structure whatsoever in the said property without the prior written consent of the Vendor such consent to be at the discretion of the Vendor.

I have queried the council about this, and got an interesting response :

I am unsure regarding (iii) ..., as the council would not use the word Vendor and I am unable to locate the Transfer dated

redacted, but all correspondence in the file states that the land should be used for garden purposes only and not for building purposes.

I haven't yet asked the vendor if they have a copy of any conveyance that goes with the parcel of land. My own solicitor is certain that there will be one, and it will have clauses "passing on" any restrictions - the Land Registry entry only containing "key bits" and not the whole thing - and meaning that if I build without permission, the council can force me to pull it down.

It's a bit tricky given that a primary purpose of moving to to have somewhere with enough space for a workshop, and to move and then find the council won't permit it would be "a bit of a bummer" to say the least.
Anyone come across this sort of situation before ?
Anyone heard of the "at the entire discretion of the council" clauses being challenged as unreasonable given that it effectively gives them complete and utter veto over future use of a property they sold on decades ago - way beyond reasonable planning policies ?
Any other thoughts/observations ?

 

[John D v2.0]

Many restrictions don't pass on with the property, if they give you an obligation to do something. So they can't force you to use it for gardening, but they can stop you from building on it.
But if it says you need permission from the council, just apply for a lawful development certificate, that's "permission from the local authority"?

 

[^woody^]

Those are typical terms in an ex council property, and don't prevent normal domestic development and usage of the garden.

In this context, "the council" is the housing dept not the planning dept, so the concerns relative to the property are different.

 

[SimonH2]

Many restrictions don't pass on with the property, if they give you an obligation to do something. So they can't force you to use it for gardening, but they can stop you from building on it.

Well the main covenants on the house include clauses that require any owner to pass them on - so no, they don't "die" on the next sale. I haven't got hold of anything on the extra land yet so I don't know what it says - most likely something similar

But if it says you need permission from the council, just apply for a lawful development certificate, that's "permission from the local authority"?

That had occurred to me, but I suspect it's really not that simple !

... In this context, "the council" is the housing dept not the planning dept, so the concerns relative to the property are different.

That's my concern. You hear so many stories* about planners with their own ideas of what should be allowed - but at least with planning there are rules and guidelines so when a planner says you can't do something that's PD you can tell them where to go. It's when there's a clause that says "at their entire discretion" that I start to get a bit wary - because unless there's been something passed down (eg guidance from central government) that puts restrictions on the council, then there's nothing to beat them with if they don't want to play nice.
Trouble is, it's not a cheap property, and it's an expensive problem IF I hit it.

It may be that I'd have no problem and they are completely reasonable people I'd be dealing with - I just don't know

* Yes I know, we only hear about the problems ...

 

[John D v2.0]

Well the main covenants on the house include clauses that require any owner to pass them on - so no, they don't "die" on the next sale. I haven't got hold of anything on the extra land yet so I don't know what it says - most likely something similar

...

Well my point is they can write what they like, but just because something's written down doesn't make it enforceable.

 

[^woody^]

planners with their own ideas of what should be allowe

Planning law has no connection with property law, and planners have no remit to get involved with covenants or easements.

The housing dept deal with permissions in this context. It's so that anything done to an ex council house does not affect any that might remain or prevent the housing dept carrying out their other responsibilities - say when one house is sold in a terrace where the council might need access for maintenance to their other houses.

 

[SimonH2]

I understand that fully - both points. The point I was making is that with planning, there are clear rules/guidelines so that if (for example) a council tried to stop someone doing something that was PD then there is a means of pointing them at the rules and they have little choice but to allow it or lose on appeal.
With these restrictive covenants, as written, then if some council busybody doesn't like it, then they don't need to have any reason in order to stop it. At least with the wording on our current home, we could argue whether they were "unreasonably withholding" consent - but when the covenant says it's at the councils discretion then it's a different matter. I have no idea if there are any rules or guidelines laid down for such things - or whether it really is up to each council (or just the officer they've assigned the task) feels like on the day.

And the covenants go well beyond what's needed for the reasons you give. Taking ours, there's all sorts of waffle about services, maintenance of shared structures (eg party walls and fences) etc - which are already covered by normal property law. What I can see, having read through it again, how some of it might be needed for certain types of property where (for example) it's been built on the assumption of multiple units being under common ownership, and therefore services might be shared/communal which would otherwise have been separate.
Under things not allowed without permission, there's stuff about not annoying the neighbours, not holding an auction, not selling any booze, and not carrying on any form of trade. Most of these are either covered by general law, or really should be no business of the council - at least now.

 

[^woody^]

I understand that fully - both points. The point I was making is that with planning, there are clear rules/guidelines so that if (for example) a council tried to stop someone doing something that was PD

I'm not sure you do.

The council are two different entities in this context.

The reasons by the housing dept for declining any convent, will be distinct from any planning regulations.

 

[SimonH2]

OK, I'll rephrase slightly, then you'll see that we're in violent agreement

If the PLANNING DEPT decides to do it's own thing, there are rules/guidelines for planning matters which can be used to over-ride them. EG, if they want to stop you doing something that is PD then all you need to do is either tell them to "put up or shut up", or apply for an LDC which they will either grant it or lose on appeal. For non-PD, they still have to work within the local plan and guidelines.

If the HOUSING DEPT decides to do it's own thing (for whatever reason), then unless there's some prior case lore against them, then as worded this restriction would allow them to impose whatever restrictions they feel like. I would hope that they'll be sensible and allow anything that doesn't impact the utility/value of their remaining properties - but you never know if you're going to find a helpful person or a little hitler (perhaps someone thinks that the houses should never have been sold* and now sees a way to restrict anyone now owning one).

At the moment, I'm doing a quick sketch to send them and see what they say.

* Another kettle of fish. Overall, it's worked wonders for this area - it used to be "a council estate" with all the inferences people might make, now it's a "desirable place to live" with a high proportion of council houses, and the properties are known to be well built unlike some of the private developments nearby ! It's just a pity the councils were (AIUI) blocked for political reasons from building replacement stock.

 

[^woody^]

Property law and covenants will alwsys take precedence over any planning rights - whether they are existing permitted development rights or not.

 

[SimonH2]

Err, I didn't say otherwise.

 

[chappers]

There are very few situations where a covenant is unenforceable and these mainly revolve around a covenant being uncertain or ambiguous or contravening existing common law.
If you believe that a covenant is unenforceable or being unfairly enforced then your recourse is to take it to the Lands Tribunal, but be warned it can be a long drawn out process and costly. I would personally steer clear of a property that had negative covenants that I was unhappy with.
Speak to your solicitor you may be able to take out indemnity against enforcement, but the cost of that will be dependent on the ease and likelihood of enforcement.

 

[SimonH2]

Do you have any information/pointers about the process of applying to a council for consent under such a covenant ? I've been emailing back and forth for a couple of weeks now - and despite having been talking about covenants, it's taken until today for anyone to even talk about them. It's like when you watch a politician being interviewed, and no matter how many times the interviewer rephrases the question,the politician doesn't answer it Even that mention was incidental as the last reply was along the lines of "before applying for planning you'll need a deed of release to remove the covenant".

 

[chappers]

No sorry the nearest I got was I bought a property from the council which had restrictive covenants and the council were willing to take on the liability for one of the covenants.
You need to speak to the councils legal dept. in the first instance, they would then farm it out to the relevant departments for their opinion, but ultimately it would be the legal dept that made the decision.

 

[SimonH2]

I'm still waiting for them to actually give any answer to the main question. I've got answers to quite a few questions, including ones I didn't ask, but not to the one I need an answer to Oh well, we'll see how it goes.
Being positive, there's a lot of extensions and even new builds going on, so they can't be too hard line - either that or there's a lot of covenants being breached in ignorance.