Brighton Conveyancing - Old covenants don’t cause problems

Craignair Avenue, Brighton

When carrying out Conveyancing in Brighton on houses it is common to find that they are subject to old restrictive covenants.

Acting for the buyers of a freehold house on Craignair Avenue, Patcham, Brighton, BN1, Conveyancer Dawn Thomas found from the registered title that this property was built on the Ladies Mile Estate in the early 1930s, and was subject to a number of old covenants common to properties on this estate.

The sellers’ agents were Spencer and Leigh of 101 London Road, Patcham, Brighton BN1 8YA. They sent Dawn the sales memorandum, confirming that the agreed price, which was in the region of £300,000.

Dawn then contacted the sellers’ Conveyancing Solicitors, Messrs.Green Wright Chalton Annis of 60 High Street, Steyning, West Sussex BN44 3RD, who sent her the draft contract and copy of the land registry title.

The title was freehold, and there was a note on the title that the house had a right to use a shared side passage with the owner of the adjoining property. Each house owned the passageway up to the centreline, and each had a right over the other owner’s part of the passageway. This passageway was shown on the title plan, and gave access on foot to the rear gardens of the properties.

The title also stated that the property was subject to various covenants contained in earlier Conveyances of the land on which the house stood, dating from 1932, as follows:

“1 The land in this title and other land is subject to the following covenants reserved by a Transfer dated 1 February 1932 made between (1) Arethusa Emma Stay (Vendor) and (2) George Samuel Ferguson (Purchaser):-

"THE Purchaser for himself and his successors in title owner and owners of the land hereby transferred or any part thereof and so as to bind the same into whosoever hands the same may come but not so as to be personally responsible after parting with all interest therein doth hereby covenant with the Vendor and such her successors in title as aforesaid ....... that no gipsy caravan or house on wheels Mental Hospital Fair or Roundabouts shall be permitted erected or suffered upon any part of the land hereby transferred."

The following are details of the covenants contained in the Transfer dated 16 May 1933 referred to in the Charges Register:-

The Transferee for himself and all persons claiming under him and so as to bind the transferee and the owner or owners for the time being of the property hereby transferred and of any and every part thereof (but not so as to make any person or persons responsible in respect of any breach committed after he or they shall have ceased to be the owner or owners of the same or of the part thereof upon or in respect of which such breach shall have been committed) hereby covenants with the transferor and his assigns that the transferee and all persons claiming under him as aforesaid will observe perform and abide by the restrictions and stipulations set forth in the second schedule hereto.

THE SECOND SCHEDULE above referred to

1. NOT to erect or permit or suffer to be erected upon the land hereby transferred:-
(a) Any building or hoarding or sign-board or other erection whatsoever (other than boundary fences or walls not exceeding 4 feet 6 inches in height) in front of the line of the building erected on the said piece of land.

(b) Any garage shed or outbuilding or other erection whatsoever (including a wireless pole or flagstaff) without first submitting a plan and particulars thereof to the Surveyor to the Ladies Mile Estate and obtaining his approval thereto.

(c) Any boundary fence exceeding 5 feet in height except where the land is bounded by a public way and except for a distance of 12 feet from the house where the height may be 6 feet.

2. NOT at any time to convert or cause or permit or suffer to be converted the dwelling house erected on the land hereby transferred into a shop.

3. NOT to use or permit or suffer to be used the property hereby transferred in any manner which shall be or become a nuisance annoyance or disturbance to the transferor or the owner or owners of the property in the neighbourhood. And in particular will not permit or suffer upon the property hereby transferred any gipsy caravan house on wheels fair or roundabouts or mental hospital.

4. NOT to carry on or permit or suffer to be carried on upon the said property any trade or business whatsoever PROVIDED ALWAYS that this restriction shall not be deemed to prohibit the use of the said property as a boarding house or for the letting of apartments or the reception of paying guests nor as a professional residence.

5. NOT to exercise or carry on or permit or suffer to be exercised or carried on upon the said property the trade or business of a Distiller Brewer Alehouse Keeper Innkeeper Beershop Keeper Beerhouse Keeper Licensed Victualler Vintner Tavern Keeper or Wine or Spirit Merchant or any of them nor sell or permit to be sold upon the said property any beer ale porter wines spirits or intoxicating liquors whatsoever.

6. THE Transferor reserves the right to himself and all persons deriving title under him (owner or owners for the time being of the unsold portion of the Ladies Mile Estate) at any time or times hereafter to vary or withdraw any or all of the restrictions and stipulations heretofore or hereafter to be entered into by any past present or future purchaser of any adjoining or neighbouring land now or formerly belonging to the transferor and to sell such land or any part or parts thereof in such manner lots or portions as he or they may think fit and free from any restrictions conditions and stipulations except as to No. 5 above or subject to such restrictions conditions and stipulations as he or they may think fit.”

Covenants of this nature are often found in earlier property deeds. It is apparent that they were imposed at a time when there was little planning control, and they were intended to ensure that new residential estates remained as high-class residential areas, and that owners did not convert houses into shops or pubs, or carry on any businesses on the properties. Similar covenants were clearly imposed on all the other houses on this estate when they were first sold, which means that owners of other houses on the estate could theoretically take legal action in respect of any breach of covenant.

Although it would be unlikely that there was any breach of these particular covenants, Dawn asked the sellers’ Conveyancing Solicitors to obtain their clients’ confirmation that there were no subsisting breaches of any of the covenants, and that they had not received any notices from owners of neighbouring properties alleging any breaches. The sellers were happy to confirm that this was the case, so Dawn was able to proceed with the purchase.

Old covenants such as this are rarely a problem for buyers, but it does depend on the precise wording. They cannot be totally ignored, and cases have arisen where other property owners have successfully sued an owner for breach of covenant, or have been able to obtain an injunction stopping some potential breach.

All was well in this case, and Dawn was able to proceed to a rapid completion, to the satisfaction of the buyers. If you are seeking a Solicitor for a purchase or sale in the local area, get a quote now for Conveyancing in Brighton.