Covenant

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Mr Pringle

As a community group we are interested in taking on our local which has been closed for 2 years. It is within grounds of around an acre, part of which has a covenant. This covenant was placed by the original owner when sold to a brewery probably in the 70’s and thorough it they retain the right towards 12 1/2 % of any earnings gained from the specific area. In 1999 planning was granted for a touring caravan site and ‘change of use’ is specified (from agricultural). Does the covenant still stand? According to the planning details no objection was raised by the original land owner.
 

Newchodge

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    As a community group we are interested in taking on our local which has been closed for 2 years. It is within grounds of around an acre, part of which has a covenant. This covenant was placed by the original owner when sold to a brewery probably in the 70’s and thorough it they retain the right towards 12 1/2 % of any earnings gained from the specific area. In 1999 planning was granted for a touring caravan site and ‘change of use’ is specified (from agricultural). Does the covenant still stand? According to the planning details no objection was raised by the original land owner.
    Possiby, or possibly not. You need proper legal advice.
     
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    Frank the Insurance guy

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    Hi @Mr Pringle

    Couple of questions:
    1. Do you know if the the covenant has been enforced in recent years? Did the current owner pay the 12.5%?
    2. Have you made any attempt to contact the beneficiary of the covenant?

    If the current owner has not paid the 12.5% earnings for some years and you have not tried to contact the beneficiary of the covenant, then you may be able to get an insurance policy which will provide you with cover if the covenant is enforced in the future.

    Your solicitor acting on the purchase is likely to have access to "restrictive covenant" insurance, but if not, please get in touch as I will be able to look at this and provide a quotation.
     
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    Assuming that this in Englandshire and not in Scotland, that does not sound like a covenant to me, but a profits a prendre.

    Profits a prendre are very different to easements (e.g. rights of way) and covenants (e.g. may not be used as a bicycle shop) but they are just as important. There are different types of profits a prendre, dependant on the ownership of the land and who enjoys the profit.

    Broadly speaking, profits a prendre can be created by agreement between the land owner and the recipient of the profit (e.g. sale of grazing rights) or by prescription, where the right is acquired through sustained usage.

    Where the right being claimed is through prescription (i.e. sustained use over a long time) a similar test such as the one relating to easements is used. Evidence will need to be produced to the Land Registry which establishes that:
    • there was a period of at least 20 years’ use;
    • the use of the profit was enjoyed for 20 years by the person claiming the profit, or by their predecessors. However, the person claiming the profit cannot take into account any time during which a stranger had exercised the profit prior to them;
    • the right was exercised without force, secrecy or permission; and
    • the right claimed is not a customary right.
    The rights can be given for all time, or by way of a lease for a certain duration or for a specified period, for example, certain weeks or months each year (e.g. the right to gather nuts in the nutting season).

    Unsurprisingly, you will need the advice of a property lawyer who knows their way around profits a prendre. It may be that the profits a pendre has been abandoned through non-use if the original owner did not attempt to gain benefit from the revenue of the caravan park.

    In the meantime, here's some funky bed-time reading for you - https://www.gov.uk/government/publications/profits-a-prendre--2/practice-guide-16-profits-a-prendre
     
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    Gyumri

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    The rights can be given for all time, or by way of a lease for a certain duration or for a specified period, for example, certain weeks or months each year (e.g. the right to gather nuts in the nutting season).
    Bear in mind that squirrels swim on their backs in order to keep their nuts dry but otherwise the Byre has provided a helpful summary.

    The right granted to the original brewery was akin to a licence in return for 12.5 % of profit made by the brewery.

    I can't see how it can be a covenant if it cant run with the land. The caravan site obviously couldn't provide a share of profits if it wasn't a brewery.

    Legal advice would be needed in this case.
     
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    eteb3

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    I assume you're looking at a freehold purchase? If leasehold, things will be more complicated still.

    A covenant can run with the land, or it may be a personal covenant. Either way they can appear in the land registry particulars: see here.

    My understanding is that negative covenants (not to do X) are more likely to persist through change of ownership ('run with the land') than positive covenants (e.g., to pay over 12.5% of earnings from the plot). That's because the common law, reasonably enough, makes it hard to commit future owners to a contract they weren't party to. But it's not impossible.

    I think you need to look very precisely at what the covenant says: it will be a covenant to DO x or NOT TO DO y. That is what can be enforced in law. Your words "they retain the right towards 12 1/2 % of any earnings gained from the specific area" do not express a covenant that I recognise. The right they have is either to DO something on the land themselves (eg, graze their sheep over 12.5% of the area, or collect 12.5% of the apples on the trees) or else to sue you in court to make you DO something: eg, TO PAY £v calculated by formula w.

    Then the question is whether that covenant runs with the land, such that you will be liable to it qua freeholder of the property, or whether it will die on change of ownership. The guidelines on privity linked above may help, although you'll probably need to know exactly who were the parties to the relevant sale.

    If the covenant will run with the land, then ask who has the benefit of the covenant. Is it benefitting another estate (probably a remnant of the land out of which the parcel containing the pub was carved)? Or is the beneficiary the vendor personally? If it's another estate, there's a high chance the present owner doesn't know they have the benefit - it won't appear in the deeds of their estate, only in yours. If the vendor personally has the benefit, check to see whether it's a company that's dissolved, or a person who's long since passed away, etc.

    And then, as the Byre says, the covenant can wither away through non-enforcement even if in other respects you would be liable. If The Byre is right that the covenant grants them 12.5% of the profits a prendre, then they get 12.5% of nothing if you don't grow anything there.

    In all cases an insurance policy may be an easy fix - they cost about £15 ime. And/or, depending on the credit of the potential vendor, you could take an indemnity from them as condition of purchase.

    But you will need to know exactly what's going on legally first. You'll eventually want a solicitor, but I am in your position regularly - often, bootstrapping the due dil in the early stages will have to do. HTH
     
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