The seller appears to have breached one of the restrictive covenants contained within the title, what are the options to enable me to proceed?
  • 4th Nov 2019
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If it appears the seller has breached a covenant, the seller should be asked to remedy the breach before completion of the sale. If this is not possible the seller should consider the following possibilities:

  1. Indemnity Insurance

The seller will arrange at their cost an indemnity insurance policy from an insurance company where the buyer, their successors in title and any mortgagee are all insured against any loss which may arise as a result of the breach.  It is a common requirement of the insurance companies that the person with the benefit of the covenant must not have been contacted in connection with the breach.

  1. Obtaining consent of the person with the benefit of the covenant

The seller could consider contacting the person with the benefit of the covenant to obtain their retrospective consent to the breach. They may also agree to a release or variation of the covenant.  The seller should be liable for any payment that may be due in respect of this.

  1. Applying to the Lands Tribunal for the covenant to be removed from the title

An application can be made for an order that the covenant be removed from the title.  This is generally a last resort as it can be expensive and is unlikely to be successful.