Gardner Leader

Obtaining Consent to Property Covenants

Now and again a legal case comes along which answers one of those problems you come across every week for years and to which no one appears to know the answer. Margerison v Bates [2008] is one of those cases.

Most houses built in the last thirty years (or sold by the local authority) will have a covenant on the title prohibiting the alteration or extension of the property without the consent of the developer, an individual or the local authority. Sometimes these covenants are limited for a period of five years from the date of sale, but often they are not. In this article, Stuart Durrant, Conveyancing Partner at Gardner Leader LLP, takes a look at the issue of who can and should provide consent to property covenants.

So typically, if you bought from Trencherwood twenty years ago, and you or someone before you has added a conservatory to the property, and you (or they) did not get the consent of Trencherwood, you may be in breach of covenant. Who cares? Well usually no one until you come to sell and then your buyer’s solicitor may point this out and require an expensive indemnity policy to cover the risk of enforcement.

It is rare these days for me to read whole cases, which is a pity because I enjoyed reading the 54 page judgment of Edward Bartley-Jones QC which is both lively and puts pay to the traditional image of the judiciary.

To summarise:  Mr Margerison's land and that of Mr and Mrs Bates had been in common ownership. In 1966, the then owner Mrs Hart had conveyed away the land which came to belong to Mr Margerison by a conveyance that permitted the building of a bungalow on the land. The bungalow had been built with a flat roof and close to the boundary with Mrs Hart’s remaining land.

The Bates had purchased Mrs Hart’s land and house after her death. Mr Margerison now obtained planning permission to replace the flat roof of the bungalow with a pitched roof. The Bates objected, relying on a restrictive covenant in the 1966 conveyance that prevented any addition, enlargement or alteration to the bungalow without plans having been first approved in writing by the vendor and her consent, such consent not to be unreasonably withheld.

Of course the problem was that the vendor was Mrs Hart, and she was dead. So, Margerison argued that the covenant was discharged because Mrs Hart was unable to give consent. The Bates argued that as they had bought the land from Mrs Hart, it was they who could give consent – and they wouldn’t.

The judge to his huge credit bothered to get out of his courtroom and actually visit the site. Margerison had rather cannily arranged a mock-up of his new roof for the visit which clearly impressed the judge. He concluded that it was clear from the wording of the conveyance that Mrs Hart and only Mrs Hart could give consent and once she died the covenant effectively disappeared.

Admittedly, a lot of the judgment was based on the precise wording of this particular covenant, but this case does give us a clear answer to a very common issue that frequently arises.

The Margerison case involved a deceased individual’s consent. If the covenant requires the consent of a company that has been dissolved, what then? The 2004 case of Crest Nicholson Residential (South) Ltd v McAllister, confirms that if a covenant requires the consent of a dissolved company then effectively the covenant is discharged. You can check the current status of any company by having a look at the Companies House website at http://www.companieshouse.gov.uk/ , but it is important to ascertain whether the company has been dissolved or whether just its name has changed.

Finally, almost all former Council houses require the consent of the council for alterations to the exterior elevation or appearance; note the word ‘appearance’ which is very wide. In this instance, the Council will not have been dissolved and you will need their consent and you may need building regulation approval and planning permission which are not the same thing – quite a bit to consider!

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