129 LEgAL CoRNER
By Nigel Wilkie, Associate Solicitor, Dartmouth Office When a Positive is a Negative
Y
ou would be forgiven for thinking that a promise given by a neighbouring
property to pay half the cost of repairing the fence between you was a good thing. Unfortunately it may be worthless. english property law allows obligations or
covenants to be imposed by one property owner on another in certain circumstances. these can be positive covenants or “doing” covenants requiring a neighbouring property to maintain, repair and insure for example, or they can be Restrictive Covenants or “do not do” covenants, for example prohibiting the use of the neighbouring property for any business use or building extensions without approval. By an odd quirk of english
property law, positive promises affecting freehold properties, unlike such promises in leases, are only enforceable between the people who originally made the promises and they are not binding on any subsequent owners. this can be a problem between neighbouring houses but is a major problem with freehold flats, as each flat is dependent upon the other flats being adequately maintained and repaired and especially insured. Although freehold flats are rare, and a modern development would almost certainly be leasehold, they do arise particularly with houses converted into flats before the 1980’s. If a flat in a building falls into disrepair, and
that each flat owner have buildings insurance. For this reason, it is nigh on impossible to obtain a mortgage to buy a freehold flat. there may be a possibility of arranging an indemnity insurance policy to cover your loss if such damage does occur but it is not readily available and is likely to be expensive. If a house has been divided into two or three
If only one
person does not co-operate the consequences, particularly in a block of flats, can be disastrous
freehold flats, it is often possible to arrange for the respective owners of the flats to enter into Deeds of Covenant in favour of each other. there is a disadvantage here in that those Deeds would have to be renewed between all the flat owners each and every time one of the flats are sold. A better solution would be for all of the flat owners to agree to convert the flats to leasehold and this is a question that can be raised by a potential buyer of a freehold flat.
However if the development is of more than say four flats it becomes
unlikely that all of them would agree at the same time to convert because of the cost each would incur and it is essential that all agree or the proposal does not work. Generally speaking the various owners of
Freehold properties, including Flat owners, do co-operate reasonably well with each other as it is in their own interest to do so. unfortunately if only one person does not co-operate the consequences, particularly in a block of flats, can be disastrous!
becomes structurally unsound, this is likely to affect all of the flats in the building but the other flats owners are not likely to have a right to make the defaulting flat owner maintain or repair his or her flat or rebuild it if it collapses, and might not even have a right to require
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