Why you might need next-door’s consent to alter your home
What do you do if you are building an extension on your house and your next-door neighbours tell you to stop work because you haven’t got their consent? Or if you get a solicitor’s letter telling you that the works are in breach of a ‘restrictive covenant’ and they will get a court order if you don’t stop work?
People often buy a house with the idea of doing some work to it – perhaps building an extension, or even splitting a large house into flats.
Most people assume that they are free to do what they like with their property once they have purchased it. They know that they might have to get planning consent or building regulation approval from the local council for some works but assume that this is the only type of consent that is needed.
But many freehold homes are also subject to restrictions which can be enforced by owners of neighbouring property. Such covenants can restrict the use of the property, or require someone else’s consent to any alterations or additions.
Homeowners can get into trouble by ignoring restrictions in property deeds
A recent court case has shown once again how homeowners can get into serious trouble by doing work in breach of these restrictive covenants.
The problem is that few owners are fully aware of the existence of any such covenants affecting their property, or why they can be important.
The very phrase “restrictive covenant” smacks of legal jargon and will be meaningless to the non-lawyer.
Their existence often comes as a nasty surprise to a homeowner – especially when expensive building works have to be stopped in mid-flow because the neighbours have obtained a court injunction.
So buyers need to know what these covenants are and how they work.
Many homes are subject to restrictive covenants – but what are they?
A covenant is a legally enforceable provision which is contained or mentioned in the title of a property. Such covenants can either be positive (an agreement to do something) or restrictive (an agreement not to do something.)
The reason that restrictive covenants are so important for property owners is that they can be enforced against successive owners of the property, even if they were imposed long ago. And such covenants can be enforced by a neighbouring owner even if they were not the person who originally imposed the covenant.
Someone selling part of their land for building may well want to ensure that any building on the land being sold will not adversely affect their retained property. So their solicitor will perhaps include covenants in the transfer deed such as :
- the buyer and successive owners must not erect any building on the land being sold unless the seller has approved the plans
- only one private dwellinghouse can be erected on the land
- no external alterations or extensions to any such house are to be carried out without the consent of the seller
Restrictive covenants are also frequently imposed in transfers when a developer sells individual houses on a new estate. The purpose of these will be to preserve the character of the estate by prohibiting further development or extensions, as well as prohibiting use for business purposes.
Restrictive covenants are also sometimes called negative covenants, because their purpose must be to prevent an owner doing something on his property. The usual test is that an owner will not be in breach of a covenant if he does nothing – for example if the covenant is not to build on a plot of land, and the owner just uses the land for grazing horses, then there is no breach of covenant.
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Transfer prohibited alterations or additions to house without neighbour’s consent
In the recent court case Mrs Joyce purchased a house in Torquay in 2007. This house had originally had a large garden plot, but back in 1985 the then owners had sold the house. However they only included part of the garden in the sale, and built themselves a new house on the land which they retained.
When the house was sold in 1985 the transfer deed imposed various covenants on the buyer, which included the following:
“1. Not to use any building for any purpose other than as or incidental to a single private dwelling. …
5. Not to make any alteration or addition to the exterior or external appearance of the Property or the buildings thereon nor to erect any walls, fences or buildings … without first obtaining the written consent of the Transferor [i.e. the owners of the retained land]…”
The registered title of the house stated that it was subject to the covenants in the 1985 transfer and a copy of the transfer was held by the Land Registry.
The house which Mrs Joyce bought had passed through various owners since 1985, but the people who had sold it back then still owned the house on the adjoining land.
Having bought the house Mrs Joyce and her partner planned to carry out some works both inside and out. But when they started on the outside works their neighbours pointed out the existence of the covenants in the 1985 transfer. They also asked Mrs Joyce to stop doing anything further until the neighbours had seen details of the proposed works and decided whether or not to give consent to them.
Mrs Joyce carried on with the works, and matters subsequently descended into a long legal wrangle with solicitors being involved. Eventually the neighbours went to court.
The house was later sold at a loss, and Mrs Joyce then brought a case against the solicitor who had acted on the purchase, claiming that he had not informed her of the covenants.
In this particular case it was clear that the neighbours were in a position to enforce the covenants in the 1985 transfer. When the work did not stop they were able to go to court to obtain a court order (injunction) preventing further work. Even if the next-door property had been sold to someone else, that owner could have also taken legal action.
Check whether any restrictions affect your home before doing work
Buyers should of course be informed of the existence of covenants by their solicitor when the property is being purchased. However during any purchase the buyer will be sent a lot of paperwork and it is easy for something which might be seen as a lot of legal mumbo-jumbo to be dismissed as unimportant.
But if you do start major works and are then told to stop the temptation may well be to ignore the neighbours and carry on. If contractors have been employed then it can be expensive to have them stop work while matters are sorted out.
Unfortunately this course of action can lead to more expensive legal costs, so it is best to get legal advice straight away. Better still avoid the problem by checking out whether there are any covenants before starting work.
Anyone buying a house and planning to do some work to the property should clearly state this to their solicitor before contracts are exchanged. The solicitor can then give more specific advice as to the effect of any covenants in the deeds, and perhaps suggest a way in which the effect of the covenants can be mitigated or even removed.
Owners who have already bought a property and later plan to do works or change the use should also take legal advice as to whether their property is subject to existing covenants, and whether there is any likelihood of those covenants being enforced.
It has to be said that it is quite rare for old covenants to be enforced, and in many cases works can be carried out in breach of a covenant without anyone complaining or taking legal action. However the problem for lawyers is that it is very often difficult to know who could enforce the covenant, so it is usually impossible to say for certain that a covenant can not be enforced.