Homeowners planning to build on neighbouring land could be hit
by restrictive covenants even if they have bought the land and have
planning permission, property lawyers at Lodders Solicitors in
Stratford upon Avon are warning.
Lodders' property lawyer Penny Samworth said: "A recent ruling
means that a covenant against nuisance and annoyance can apply to
building works.
"In practical terms this means that people should be aware of
this when buying property which is already affected by a covenant
not to cause a nuisance or annoyance to the owner of neighbouring
property, because it may prevent them from adding an extension.
"Lots of properties are affected by covenants of this nature,
particularly when they form part of a development. It would also be
of interest to anyone buying land from a neighbour, if the
neighbour wants to impose a covenant of this nature.
"The way to deal with it is for the buyer's solicitor to qualify
the covenant so that it would not prevent the buyer from building
on the land."
In a court case Davies v Dennis and others, the Court of Appeal
upheld the High Court's decision that building a house extension
was, in the circumstances, in breach of a restrictive covenant
against nuisance and annoyance.
The Court of Appeal held that the covenant not to annoy or cause
nuisance did apply to the proposed building works. The new
extension was capable of being a nuisance, while being built, and
once built.
It also ruled that the covenant was not nullified by any
permission given to carry out the works, further to a separate
covenant not to build without the consent of the management
company.
The judgment adds weight to the earlier decision that a covenant
against nuisance and annoyance can apply to buildings. Such
covenants cannot be dismissed when considering the feasibility of
developing property.
Penny Samworth said: "The case also illustrates the common
pitfall of failing to check whether the proposed development is
permitted from a land title perspective despite the fact that
planning permission has been obtained.
"Home buyers often suffer from rose tinted glasses in the
euphoria of buying their next property and it is very important
that your solicitor checks out all aspects of the purchase, not
just that the bricks and mortar exist and are in good order."