You have found a buyer. The conveyancing is moving forward. Then the buyer’s solicitor asks for consent for a conservatory or extension built years ago.
You have the building regulations paperwork. Nobody has complained. But the title contains a restrictive covenant requiring separate approval, and you cannot find evidence that it was obtained.
If a possible covenant breach is now affecting your sale or remortgage, visit When I Bought’s restrictive covenant breach page. It is a useful starting point if you are questioning what was checked or explained when you bought.
The enquiry that can complicate a sale
Consider this illustrative scenario.
A homeowner discovers during a sale that their conservatory may have required the original developer’s written consent. They send the developer a message asking whether the covenant still matters.
It feels like a sensible attempt to resolve the problem. But when they discuss indemnity insurance with their solicitor, the contact becomes another issue to investigate.
The important question is what the message disclosed, who received it and whether that person or organisation has the right to enforce the covenant. Before making an approach, the seller should let their conveyancer assess the available options.
Building regulations approval is a separate issue
Paperwork confirming that building work met building regulations does not, by itself, establish compliance with a private covenant in the title.
Planning permission is also separate. Government guidance expressly explains that a restrictive covenant can prevent development even where planning permission exists. A covenant requiring written consent therefore needs its own examination.
For sellers, this distinction can be frustrating. They believed they had the necessary paperwork, only to discover that the buyer’s solicitor is asking a different question.
Can indemnity insurance resolve the problem?
Restrictive covenant indemnity insurance may offer financial protection against specified losses arising from enforcement of a covenant. It does not remove the covenant or provide retrospective consent.
Availability depends on the circumstances and the insurer’s requirements. For example, one insurer’s standard product is designed for an existing breach that is at least 12 months old, with no known complaint. Those are product criteria, rather than a universal rule about whether a property can be insured.
Contact with a potential beneficiary may complicate the assessment because it could alert them to the breach. However, a seller should not assume that every enquiry automatically makes all insurance unavailable.
If you have already made contact, give your solicitor the complete correspondence. Relevant information must be disclosed accurately to the insurer so that any decision about cover is based on the actual circumstances.
Does it matter that the work was done years ago?
The age of the work can matter, but it should not be treated as proof that the covenant has disappeared.
Nor does the presence of similar conservatories or extensions elsewhere on the estate establish that your alteration was authorised. Other owners may have obtained consent, have different title wording or face different circumstances.
Your solicitor needs to examine the covenant, the relevant deeds and who can enforce it. Government guidance recognises that identifying the person entitled to enforce a covenant can require investigation of older conveyancing documents.
What should a seller do next?
Start by giving your conveyancer:
- The title documents and the deed containing the covenant.
- Any consent, plans or correspondence relating to the alteration.
- The approximate date the work was completed.
- Details of any complaint or previous approach to the developer or another potential beneficiary.
- Your purchase report and any indemnity policy supplied when you bought.
Ask your solicitor to assess the position before you seek consent yourself. Depending on the circumstances, the options may include locating an existing approval, investigating enforceability, considering suitable insurance or negotiating consent or release.
What if the alteration was already there when you bought?
A covenant issue can also emerge when a buyer’s solicitor checks alterations or the way a property is being used. For more on how this can affect an owner trying to move, read our related article on selling a property with a restrictive covenant breach.
An existing conservatory or extension can raise a further question: what did your conveyancer identify and explain at the time?
Check your original report on title for the covenant, any missing consent and the proposed solution. A difficulty arising on resale does not, by itself, establish that the original advice was defective, but it gives you a reason to revisit the documents.
If a restrictive covenant breach has become an obstacle to selling or remortgaging, visit When I Bought to explore the issue and make an enquiry.