Restrictive Covenants retrospective application

[RosaL]

Does anybody has any knowledge about councils agreeing retrospective permission regarding alterations to former council houses please? I read a newspaper article recently about Restrictive Covenants on ex-council houses which are legal requirements to get council (or housing association) permission to make any alterations. About 15 years ago we built an extension on our house which had been bought from the council in 1988 - not by us. I’ve done a bit of research and found that such a covenant does apply to our property, although we weren’t aware of it at the time of building the extension. As I understand it, this permission is completely separate to building regs and planning permission. I’m thinking I should approach the council now about this – the newspaper article was about a house seller whose buyer withdrew after discovering the covenant, which she (the seller) hadn’t known about. But I’m somewhat terrified that the council will say no! I’ve looked on the council website and there’s a form for applying for permission, but nothing referring to retrospective permission ☹ By the way, both neighbours’ houses have extensions, and neither of them had any idea what I was talking about when I asked them about the restrictive covenant, which I'm assuming would be on all the houses on this housing estate – all former council houses. I look forward to hearing anybody’s views or experience of this. Thanks

 

[Doppleganger]

I would have thought that an argument along the lines that you asked for planning permission from the council, and you expected their planning department to have known about any planning restrictions.
Assuming of course that you are referring to the same council that issue such covenants and planning permissions.

 

[RosaL]

Thanks for replying Doppelganger. Yes it's the same council. As I recall it (a bit hazily), the extension didn't need planning permission as such. This issue is about seeking to make an alteration to a former council house (something to do with Section 157) - I've no idea why council houses have this separate requirement, but the 2 permissions are definitely distinct from one another. But what you’ve said sounds like a good reason for me not to have known about the Restrictive Covenant. However the fact remains that the building of the extension was in breach of it, and I’m worried the council will say ‘no’ whatever ignorance I plea. I just wanted to know if anybody has ever been caught out like this before, and what their council have said. Somebody suggested I just keep quiet, but I’m sure it would come up in a future search when I want to sell the house. I wonder why it wasn’t discovered by our solicitor. In fact now I’m wondering if it did and we just forgot about it years later - when we first bought the house we never dreamt we’d ever want, or be able to afford, an extension!

 

[Mottie]

Not 100% sure this is the same but when the Mother in Law bought her house, the solicitor noticed there was some sort of covenant on it to do with the local parish not having buildings on it. He said it was quite common and he advised her to take out a one-off insurance (cost a couple of hundred quid) should it ever come up in the future. I don’t know exactly what the payment covered or if I’ve got all the details correct but it was something along those lines as it was about 15 years ago. Perhaps others on here will know what I’m talking about and if it applies to you, it’s just something for any prospective purchaser to buy if the situation ever arises in the future.

 

[Astra99]

I think what Motman is referring to is "Chancel Repair Liability". This is where any buildings on what was previously land owned or occupied by the Church (or monastery) are deemed liable to pay for any repairs needed to the church building(s). If I remember correctly, the insurance to cover this eventuality was a single payment of around £10-15. It is completely different to, and separate from any Restrictive Covenant on the land or buildings. HTH

 

[Mottie]

Now you mention it I think it was that. Call me Mr Memory!

 

[^woody^]

Covenants are part of property and land law and are distinct from building and planning law. A covenant is written into the property deeds and the conveyancer should make the buyer aware of his obligations under covenants and easements.

They are effectively contractual agreements between the property owner and a beneficiary (the council in this case).

Typically, council housing departments will use covenants as a means of controlling what a buyer can do with their house and garden in order to protect the housing department's interest in their surrounding houses and land.

The housing department with have to have a very good reason for enforcing a contravention, and just not asking for permission for a typical extension that does not affect the housing department is not a good reason.

 

[^woody^]

I would have thought that an argument along the lines that you asked for planning permission from the council, and you expected their planning department to have known about any planning restrictions.
Assuming of course that you are referring to the same council that issue such covenants and planning permissions.

That's not a reason. The departments are distinct and one does not check up with another unless data had to be passed for legal reasons.

A planner is not expected to check the house deeds of an applicant

 

[Doppleganger]

That's not a reason. The departments are distinct and one does not check up with another unless data had to be passed for legal reasons.

A planner is not expected to check the house deeds of an applicant

I don't dispute that the departments are distinct. I wouldn't know, so I can't dispute it.
But neither would any average planing applicant, house owner, etc.

So a planning officer is not aware that the application is for an ex-council house and cannot check to see if the application contravenes any potential covenant?
I would expect the council to be 'joined up' and that any one department would be aware of another department's restrictions and to have access to other department's databases, etc. especially in the area of ex-council houses and planning applications. It does not seem unreasonable to me.

 

[JP_]

Won't it say on the deeds if one is in place?
Do you think you might sell?

Indemnity insurance should cover it though - I had to buy a £250 policy for my buyer because I didn't ask Barratt Homes permission to build an extension on the house they built 12 years previously.

 

[Notch7]

I would expect the council to be 'joined up' and that any one department would be aware of another department's restrictions

you might think so, its not the case though.

AFAIK restrictive covenents dont have to be lodged with the planning department. So it might not be possible to find out if a house has one or not.

 

[JP_]

I think it will only be an issue if you sell, but insurance will cover it. I think you probably have 2 options:

1. Tell the council and risk them saying "rip it down!"
2. Do nothing, enjoy it, and get the solicitor to cover it when you sell.

I think we all would do the same.

 

[Doppleganger]

you might think so, its not the case though.

AFAIK restrictive covenents dont have to be lodged with the planning department. So it might not be possible to find out if a house has one or not.

But if it's not possible for a planning department of a council to find out if an ex-council house has any covenant created by that same council, isn't it an arguable case (the speaker's words) that the planning department of that council ought to have known, or there should be a mechanism for them to find out.
How hard is it to find out? How hard is it to create a mechanism for them to know or find out?

Additionally won't the covenant be between the council and the house owner.
Won't it say something like, "the permission of the council is required..."
Therefore if the planning department of that council has given approval to a planning application, it could be argued that permission was sought and granted.

 

[^woody^]

Planners are only concerned with planning law and have no remit over any other permissions or requirements of the householder/applicant. This means they can't let anything but planning law determine their decision.

 

[Notch7]

But if it's not possible for a planning department of a council to find out if an ex-council house has any covenant created by that same council, isn't it an arguable case (the speaker's words) that the planning department of that council ought to have known, or there should be a mechanism for them to find out.
How hard is it to find out? How hard is it to create a mechanism for them to know or find out?

My only experience is ringing the planning office to ask; their only solution seems to be to look at the planning history and see if anything if mentioned.

What you are saying is logical -surely their should be a central register where covenents are lodged and the most obvious place would be the planning portal.

If say a developer sets a covenant on a new housing estate, who knows about it? I guess only the developer and on the deeds. Subsequent buyers may not be able to find out. Maybe conveyancing solicitors have a way to check....