The ongoing debate over the Government’s proposals to unleash a free-for-all on house extensions might be a political embarrassment, however the very real danger of increases in breaches of restrictive covenants claims has been largely ignored, warns Titlesolv.
Restrictive covenants controlling use of land have traditionally posed a problem for developers as they can prevent development even when planning permission is granted. If the revised proposals to allow householders to extend their home without planning permission but subject to ‘light touch’ consultation with neighbours goes ahead, Titlesolv warns that this could well open up the floodgates to enforcement of restrictive covenants by adjoining property owners. .
Harsit Nakarja, Underwriting Manager at Titlesolv, says: “These proposals serve to demonstrate the increasing interaction between planning law and property law. Historically there was no planning law. Deals were done on the shake of a hand and mutual understanding that if a neighbour sold a house or land to a neighbour, then neither would build anything to the detriment of the other. Over time and as planning law has evolved, homeowners had naturally lost sight of their historical rights. If the Government proposals go ahead, even in a watered down state, the relaxation of planning law will automatically increase the focus on historical rights.
”Relying on councils to notify neighbours is likely to heighten any potential sensitivities and the fact is that if there is a restrictive covenant on a title, then a neighbour could seek to enforce it. They will effectively have a back door route to controlling any desired development and solicitors are going to have to be increasingly wary about this.”
He goes on to warn that the recent case of Wilkinson v Kerdene Ltd [2013] EWCA Civ44 has further extended the debate on covenants such that when reviewing historic titles, solicitors should now also be considering the possibility of property owners being forced to comply with positive covenants.
“The Titlesolv team is following the debate with great interest. We’re certainly gearing ourselves up to help solicitors with bespoke cover for their clients, whether for restrictive or positive covenants, as the picture becomes clearer.”
