Restrictive covenant on ex-council house

Restrictive covenant on ex-council house

Postby Dave Sor » Mon May 10, 2010 2:58 pm

Have just retired and purchased an ex-council house and want to put up a garage. there was a covenant when the council sold it in 1981 stating

“That without the previous consent in writing of the Council no shed outhouse or any other structure of any kind whether temporary or permanent shall be erected .......”

Despite having planning permission for a garage, the council now want to charge me £15,750 + £444 fees to release the covenant (i.e. to let me build the garage).

They quote case law of Stokes V Cambridge which mentions 50% of the increased value (their valuation of the increased value is also questionable). The case law seems to apply to additional dwellings which detract from the existing dwellings, rather than this type of situation.

This seems like extortion (although they do allow that the charge can be negotiated). I have read of other councils who charge c£200.

Does anyone have any advice or case law to challenge this please?
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Postby juliet » Mon May 10, 2010 5:59 pm

Write back and query it, say that you want to submit a formal complaint about the way this has been handled and so on. That way you can exhaust the complaints process and get the Local Gov Ombudsman to look at it.

I think that they are trying it on, a bit of a rabbit away here as they say. How can they rely on case law around a 'ransom strip' when the RTB legislation as exists now never came into being til 1980? I believe? the purpose of the covenants was to allow councils to keep hold of estate management, not to make cash. I think that any judge would take a dim view of what they are doing.

I would even be tempted to just build the garage and let them do their worse but your choice of course.
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Re: Restrictive covenant on ex-council house

Postby Sudynim » Mon May 10, 2010 8:56 pm

Dave Sor wrote:Have just retired and purchased an ex-council house and want to put up a garage. there was a covenant when the council sold it in 1981 stating

“That without the previous consent in writing of the Council no shed outhouse or any other structure of any kind whether temporary or permanent shall be erected .......”

Despite having planning permission for a garage, the council now want to charge me £15,750 + £444 fees to release the covenant (i.e. to let me build the garage).


Did your solicitor point this covenant out and explain it's potential effect during the purchase?
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Postby Dave Sor » Mon May 10, 2010 9:02 pm

Yes - I knew about the covenant on the day of the sale but assumed (very wrongly) that my council would charge similar amounts to others (typically >£250)
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Postby juliet » Mon May 10, 2010 9:34 pm

I am still sure that they are applying the wrong 'case law' to an altogether different situation and you are right that you should be paying around £200 or so. They shouldn't be applying that sort of fee for this as you own all the land and in the case that you quoted - which I went and had a look at - is about where you need to purchase extra land. I know that I am repeating myself, but the RC clause was for estate management purposes and the council are applying the wrong slant on it. We have also had a previous discussion on here along a similar vein that may be of interest.

http://www.gardenlaw.co.uk/phpBB2/viewt ... f3ad5f9533
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Postby kipper » Mon May 10, 2010 9:36 pm

Do you know of any neighbours that have built? If so, can you find out what they were charged?
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Postby kipper » Mon May 10, 2010 9:43 pm

Besides, you are not asking for the covenant to be released which would require some deed or other drawing up. You only seek written permission for the one structure that you currently wish to build, as per the terms of the covenant.
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Postby juliet » Mon May 10, 2010 9:59 pm

And this looks quite interesting if you can find out more about the case mentioned here?

http://democracy.breckland.gov.uk/Publi ... ocA.ps.pdf
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Postby Conveyancer » Mon May 10, 2010 10:30 pm

There is something about the case here: http://www.wrighthassall.co.uk/resource ... nants.aspx

Write to the council and ask them to review their decision in the light of R v Braintree DC (ex parte Halls) (2000)
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Postby kipper » Mon May 10, 2010 10:50 pm

4.1 A decision in a House of Lords Case in 2000 (R.V. Braintree D.C. ex parte alls) held that a Council is not entitled to use a restrictive covenant to reserve for itself the ‘future development value’ of a property sold under the ‘right to buy’ scheme.

4.2 Counsel’s advice was obtained on its implications and is as follows:
a. it would be improper and unlawful for the Council to continue to demand payment for the release of the covenant; such payments should not be demanded in respect of any future requests for release, or in relation to any ongoing negotiations for release, which are not yet complete.
b. continuing to demand payment in the knowledge that the demand is ultra vires, might amount to obtaining property by deception within the meaning of Section 15 of the Theft Act 1968. Section 18 of the Theft Act extends the liability in relation to a body corporate to certain officers and members.
c. the Council should therefore release purchasers from the covenant when requested to do so without payment.
d. it may be that sums paid both before and since the decision in ‘Halls’ are potentially recoverable as payments made under a mistake in law, but much will depend on the facts of each individual case.
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Postby Dave Sor » Tue May 11, 2010 10:38 am

Thank you all for your suggestions and advice. I now have some excellent ways to go forward. The (R.V. Braintree D.C. ex parte alls) case seems very appropriate
Please continue to add suggestions if you have any. I will update you with the outcomes when available.
Thanks again to all
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Postby Dave Sor » Sun May 30, 2010 11:04 am

Great news.
The council in question is Welsh and I contacted an Assembly member to explain the issue. I passed on your information to one of his researchers about 'R.V. Braintree D.C. ex parte alls' and the result is that they have now granted consent without any payment.
Thanks again to you all for your help. As suggested I will be making a contribution to charity

Dave
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Postby juliet » Sun May 30, 2010 1:00 pm

Great stuff, that is good news
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Re: Restrictive covenant on ex-council house

Postby farnham69 » Thu Feb 17, 2011 11:10 am

Hi,I have had a similar problem on an ex council house and would appreciate it if you can get in touch with me.Dave.
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Re: Restrictive covenant on ex-council house

Postby w3526602 » Thu Feb 17, 2011 6:50 pm

Hi,

If it was the same council that granted you planning permission ..... it could be argued that they gave you permission. :D

It could als be argued that a potential £15,000 could be considered a financial incentive to grant PP. :shock:

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