Easement and restrictive covenant

[crazymike]

Hi really struggling with this can anyone help , i not what these mean just need help how to explain. thanks

this is the question

A slient is considering the purchase of an identified site, but his solicitor’s‘search’ on the property has identified an ‘easement’ with regard to access tovarious cables buried beneath the surface, and a ‘restrictive covenant’ relatingto the prohibition of any high-sided vehicles being parked on the property.Explain these types of restriction and how the client’s use of the land might beaffected.

[ianoz]

Mike , here in Australia ,An Easement means Concil Etc hve run services through the block of land.Here it means you can not Build over the easement.
A covenant , Is usualy put in place here by the Developer of the Estate ..Usually in is to control the type of material the houses can be built out of.
I this case ,Sounds like it is to keep Trucks and van owners out of the estate .

[Stock]

Hi really struggling with this can anyone help , i not what these mean just need help how to explain. thanks

this is the question

A slient is considering the purchase of an identified site, but his solicitor’s‘search’ on the property has identified an ‘easement’ with regard to access tovarious cables buried beneath the surface, and a ‘restrictive covenant’ relatingto the prohibition of any high-sided vehicles being parked on the property.Explain these types of restriction and how the client’s use of the land might beaffected.

Basically what your solicitor has found is that there is a right of way /access for buried services in this case "cables " This in itself will prohibit any form of construction.There is also a prohibition on the parking of heavy loads on the site as this may also result in damage to the underground services namely the cables.

So in a nutshell he can't dig, he can't build, and he can't park a load on the site or part of it, Then finally the owner of the service "the cables" has been granted a right of way to maintain the services, so at any time they can come digging..............

Hope this helps

Stock

[v8druid]

Just to add to Stocks very good explanation,
the easement is normally only for a restricted piece of the ground/property and usually only applies to a reservation of 3 meters either side of the service route.
If it's an acre and the service goes through the middle then it effectively cuts it in half as regards the development of the site for building on, but should not affect the areas outside of the reserved areas. Now't wrong with roadway construction on top as this is easily dug, or grass/gardens/play areas, etc..

The service should be deep enough to be unaffected by traffic over it. if not they need to bury it deeper as a standard requirement/duty of care.

Have they been paying wayleave for the use of the route? Otherwise a good legal could make 'em move it/re-route it/completely remove it.
If they have, there are also the detrimental issues caused to the value of the site because of their presence. Again a good legal could achieve compensation from the service supplier for the differential between the value of the site with/without their service and this is in statute, with many precedents.

I have first hand experience of this situation, recently and have lots of files on precedents and the agencies/providers legal duties to land owners, over whose properties their services pass.



As far as the high sided vehicle covenant is concerned, that is almost certainly a completely different issue and could have been imposed by a previous vendor, or a planning restriction, to restrict the use for high sided commercial vehicle parking and without a definition of "High Sided" is pretty wishy washy.
Again a good legal or planning consultant could probably get this removed - there is bound to be a history of the covenant on the deed packet, as this will be where it is imposed.
The cause of, or reason for, the imposition of the covenant may well be long since gone and would be an easy matter, for a solicitor, to extinguish it, in that case.

[ally mac]

Just to add to Stocks very good explanation,
the easement is normally only for a restricted piece of the ground/property and usually only applies to a reservation of 3 meters either side of the service route.
If it's an acre and the service goes through the middle then it effectively cuts it in half as regards the development of the site for building on, but should not affect the areas outside of the reserved areas. Now't wrong with roadway construction on top as this is easily dug, or grass/gardens/play areas, etc..

The service should be deep enough to be unaffected by traffic over it. if not they need to bury it deeper as a standard requirement/duty of care.


I have first hand experience of this situation, recently and have lots of files on precedents and the agencies/providers legal duties to land owners, over whose properties their services pass.

Very interesting.

We bought a plot of land with a Scottish water main running through it. Its a 12" asbestos pipe and was 1.4 metres down where we had to cross it with our access road. It has taken a year and a half to get permission from them to do so. They made us build a concrete bridge with lift of concrete beams. All cost around 5k just for materials and fortunately we were able to do it ourselves as my brothers is into this kind of work. As far as we are aware there is nothing in title deeds or anything related to the pipe. Was installed in 1947 I think. It also runs through an area where we would like to build a cottage in the future but would rule that out. Would we have some sort of comeback on SW for expenses etc?

[Muz]

Very interesting.

We bought a plot of land with a Scottish water main running through it. Its a 12" asbestos pipe and was 1.4 metres down where we had to cross it with our access road. It has taken a year and a half to get permission from them to do so. They made us build a concrete bridge with lift of concrete beams. All cost around 5k just for materials and fortunately we were able to do it ourselves as my brothers is into this kind of work. As far as we are aware there is nothing in title deeds or anything related to the pipe. Was installed in 1947 I think. It also runs through an area where we would like to build a cottage in the future but would rule that out. Would we have some sort of comeback on SW for expenses etc?

Bigger deal is ......... who is getting water from an asbestos pipe ?

[ianoz]

Bigger deal is ......... who is getting water from an asbestos pipe ?

Scots are tough , they eat that Haggis stuff . What is a bit of toxic waste to them .

[v8druid]

Very interesting.

We bought a plot of land with a Scottish water main running through it. Its a 12" asbestos pipe and was 1.4 metres down where we had to cross it with our access road. It has taken a year and a half to get permission from them to do so. They made us build a concrete bridge with lift of concrete beams. All cost around 5k just for materials and fortunately we were able to do it ourselves as my brothers is into this kind of work. As far as we are aware there is nothing in title deeds or anything related to the pipe. Was installed in 1947 I think. It also runs through an area where we would like to build a cottage in the future but would rule that out. Would we have some sort of comeback on SW for expenses etc?

"solicitor’s‘search’ on the property has identified an ‘easement’ with regard to access to various cables buried beneath the surface"

Your solicitor has identified the/an easement in the searches so you'd be hard pressed to get much out of it, as it's established in the deed, or are we talking something completely new/different - search says cable????.

you'd have more chance with the devaluation of the site that it represents especially if there's never been wayleave paid on the route.

You're lucky it's a pressurised water main, not a sewer, as I had.
The main's an easier proposition to divert, and particularly as it's asbestos it could be an 'embarrasing' issue in the right places - they might like to replace it and re-route it at the same time, for a certain amount of discretionary silence i mean - asbestos!!!!! water main!!!!!! OMG!!! wouldn't go down too well in the public domain (press)!


BTW you were lucky to get to do it yourselves - My 1200 sewer diversion was a utility only job - £450k plus 10% management fee - I had quotes from the people/subbies, that do their work, for £110-120k, but they would not allow anyone other than themselves to touch it! and no bridging-no way, no how!! looked at that one

Took a massive hit on the value of my site and left the developers deal with the crap, or it could've gone on ad inifinitum and I'd have to deal with it all - still nothing done 13 months on from completion. right decision

However - Scottish law is a world apart from the rest of the UK you need a good legal with plenty of land experience, who'll tell you in minutes, if he's up to snuff.