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Author Topic: Charge against property for market garden  (Read 563 times)

WishfulThinker21

  • Joined Jan 2020
Charge against property for market garden
« on: September 10, 2020, 09:08:14 am »
Hi all,
I'm looking at land to buy to start a market gardening venture.
Within the charge register of the land there is the following:
1.  Not to permit or suffer the land hereby transferred or any part thereof to be used for advertising or camping purposes or the parking of caravans or for the holding of any race match game or contest whether of animals birds or men or to be cultivated as a market garden or for any purpose other than agriculture

I was very disappointed to read this.
It seems agriculture is defined differently to market gardening in the charge register.
Agriculture is an umbrella term that includes market gardening, according to the solicitor.
This is not clear and I would like clarity.

Can anyone shed some light ?
Many thanks

Scarlet.Dragon

  • Joined May 2015
  • Aberdeenshire
Re: Charge against property for market garden
« Reply #1 on: September 10, 2020, 09:39:10 am »
It may be worth contacting the Agricultural and Horticultural Development Board (AHDB), maybe the Horticulture team there could help you?
Excellence is the result of caring more than others think is wise, risking more than others think is safe, dreaming more than others think is practical and expecting more than others think is possible.

chrismahon

  • Joined Dec 2011
  • Gascony, France
Re: Charge against property for market garden
« Reply #2 on: September 10, 2020, 10:52:56 am »
This charge is a 'restrictive covenant' and is there to protect someone, but who?  My assumption is that this covenant legally transfers to the current owner or has it been added by the current owner? Is the owner likely to suffer if any of these activities take place after the sale and therefore want to enforce this covenant? If not, then they won't enforce it and it's just meaningless. The actual definitions are irrelevant unless confirmed in court. This area can be a minefield and our legal insurance spent £25,000 enforcing what appeared to be a straightforward breach of covenant. On the other hand the person breaching it spent far more because they took it to appeal after losing the first case. Net result was the appeal was only partially successful but by then everyone had run out of money and nothing further happened. You could ask the current owner to get this covenant removed, but that may be impossible?


My advice is to leave this land and spend your money elsewhere, because selling it on later may be impossible.

Ghdp

  • Joined Aug 2014
  • Conwy
Re: Charge against property for market garden
« Reply #3 on: September 10, 2020, 12:51:43 pm »
I am sorry but this does seem to be a fundamental issue. The specific terms of the restrictive covenant on this piece of land expressly excludes what you want to do. Such a covenant will be there to protect  the interests of your seller or a previous seller and you and anyone you sell to will be bound by it. I would echo what Chrismahon has said. This does not seem the right plot for what you are planning.
Pressing on with your fingers crossed is likely to be a risky strategy.

landroverroy

  • Joined Oct 2010
Re: Charge against property for market garden
« Reply #4 on: September 11, 2020, 03:23:11 pm »
Did your solicitor not look to see how long ago this restrictive clause was added? If the person who put it on is long gone, then it's not going to affect him, and as it's personal to your land then no one else is likely to be affected by it or even care.
I'm surprised also your solicitor did not advise you that the costs of both proving and enforcing this clause are prohibitive to the average private person. Breach of the covenant does not constitute a criminal offence and therefore would have to be pursued in the civil court, where £25,000 would only be a starter for the person initiating proceedings.  I imagine ultimately that taking you to court would cost more than the purchase price of the land, and if you lost the case, then all you would have to do is remove whatever part of the market gardening was not considered to be agricultural. I am sure there would still be many options open to you in the remote chance it ever got that far. As you say, market gardening and agriculture are generally regarded as synonomous, so the case would be very difficult to prove anyway.  There are many stages of letters, threats and warnings before the ultimate court case; at any stage of which you could give in at no cost to yourself. 


If the land is ideal for you locationwise, then I personally would go for it. The covenant actually may give you a good reason to negotiate the price, and if you buy at the right price you can always resale if all does not go well. Small pieces of land always sell as they don't make it any more.
Rules are made:
  for the guidance of wise men
  and the obedience of fools.

chrismahon

  • Joined Dec 2011
  • Gascony, France
Re: Charge against property for market garden
« Reply #5 on: September 12, 2020, 07:43:55 am »
I think you are overlooking the matter of the award of costs Landroverroy. If it did go to court and the breach is upheld, costs would be awarded against the loser. Legal insurance is subject to a clause 'reasonable chance of success' so in our case (as potentially this one) we had legal insurance and the defendant did not and ultimately may have had to pay our costs as well.

Woodland Warrior

  • Joined May 2020
Re: Charge against property for market garden
« Reply #6 on: September 12, 2020, 11:07:09 am »
I've had a similar situation recently, the current owner wanted to add a restrictive covenant to keep the land use as agricultural including any buildings. We have amended the covenant to clarify agriculture includes horticulture and equine.
Ultimately they wanted to prevent the land being converted to commercial or residential, which I'm comfortable.

landroverroy

  • Joined Oct 2010
Re: Charge against property for market garden
« Reply #7 on: September 12, 2020, 05:47:33 pm »
I think you are overlooking the matter of the award of costs Landroverroy. If it did go to court and the breach is upheld, costs would be awarded against the loser. Legal insurance is subject to a clause 'reasonable chance of success' so in our case (as potentially this one) we had legal insurance and the defendant did not and ultimately may have had to pay our costs as well.


Not at all Chris! I actually said: "[/size]There are many stages of letters, threats and warnings before the ultimate court case; at any stage of which you could give in at no cost to yourself."  I have been under the threat of enforcement for the last 3 years. I would have given  in, if necessary, at any time if it actually got to the stage where a court case was inevitable. But while there is room to argue, negotiate, and look outside the box then it is worth fighting. And as it turns out - I have won! It won't go to court because we have found a totally different and blindingly simple way of avoiding a court order and can now carry on with developing our land.
[/size]For that reason - I say again - don't give up. There are many stages before enforcement leads to a court case. And it won't necessarily ever get that far anyway. Most cases don't because one or other party gives in first. Just make sure it isn't you. :sunshine: [/size]
Rules are made:
  for the guidance of wise men
  and the obedience of fools.

Dreich Pete

  • Joined Jan 2014
  • Aberdeenshire
Re: Charge against property for market garden
« Reply #8 on: September 13, 2020, 11:36:59 am »
I haven't seen mention of it, but this is in England or Wales, presumably? Scotland has some quite different approaches to the law. When we were buying this place there was a condition in the original sale of the land to the people who reinstated the steading (that is now the house) which bound them to offer the property back to the estate prior to agreeing a sale to a new party (us). The estate took weeks & weeks to bother getting back to the seller to say "no thanks", and the condition then lapsed so is no longer applicable.

Somebody else said earlier that the age of the covenant should be checked, and I'd like to second that comment. There is the possibility that it was included for reasons that only applied to somebody who is long gone (one way or another). If it was included decades ago because of a local agricultural concern, it may even be the case that such land has been converted to domestic dwelling (a housing estate or the likes) and so the covenant wouldn't have the same effect and therefore no purpose.

I would definitely be looking into the reason and age of the covenant, and it may be that it can simply be written out of your contract.

I hope you get it sorted, especially as this country is going to need all the food production it can muster.

arobwk

  • Joined Nov 2015
  • Kernow. Some say it's in England !
Re: Charge against property for market garden
« Reply #9 on: September 13, 2020, 03:55:24 pm »
I can't add much to this, but it does seem somewhat odd that horticulture was added as a specific limitation:  perhaps the originator and drafters of the covenant wished to avoid the possibility of acres of glass-houses/poly-tunnels !??  If you like the land @WishfulThinker21 then exploration of means to overturn/alter the covenant would be worth exploring me thinks:  as other posters have said, things can change or be changed and I would also suggest that many covenants on development/change of use are time limited (mine is).
« Last Edit: September 13, 2020, 04:49:08 pm by arobwk »

WishfulThinker21

  • Joined Jan 2020
Re: Charge against property for market garden
« Reply #10 on: September 15, 2020, 09:51:16 pm »
Hello everyone,
I appreciate all of you commenting.
I'm still very unclear about whether to proceed with my interest or move on.
It's a toss of the coin.
What I've managed to establish from the land registry is that the parcel of land used to belong to a larger area, and I suppose the previous owner had these charges transfer to the land.
There is nobody living nearby, although there are agricultural structures on the land next door.
If only I knew more about these charges/covenants it would help me make an informed decision.
The charges date back to 1978.
What is the approximate cost of removing a charge from a title?
How would I go about this?
I'm assuming the owners of the land nearby would need to be in agreement??
« Last Edit: September 15, 2020, 10:03:15 pm by WishfulThinker21 »

chrismahon

  • Joined Dec 2011
  • Gascony, France
Re: Charge against property for market garden
« Reply #11 on: September 16, 2020, 07:06:55 am »
If the parcel used to belong with the land next door, then that's the land that benefits from the charge now. One thing that was established in our case is that 'restrictive covenants' automatically transfer to subsequent owners unless specified otherwise.

WishfulThinker21

  • Joined Jan 2020
Re: Charge against property for market garden
« Reply #12 on: September 16, 2020, 10:09:50 am »
The other concern I have is that there is history of the ground being used as a dumping/storage ground for various pieces of machinery and containers.
The buildings on the plot next door appear to be some sort of scrap/salvage facility and I can see evidence of this on the land being sold as well. There does not appear to be a clearly defined boundary between the two pieces of land.
Heavy metal contamination may be a reasonable expectation.
Bioremediation?

landroverroy

  • Joined Oct 2010
Re: Charge against property for market garden
« Reply #13 on: September 16, 2020, 11:14:02 am »
Interesting then. So the land clearly has been used for a use other than agriculture.  :thinking:  Should be possible to find out if any enforcement action was taken on this, in connection with the covenant. However as the covenant was enacted more than 40 years ago, and if no action was taken on the last apparent use of the land, then this concern may be of less relevance than the potential pollution.


It all really depends on how much you want this particular piece of land. To me, land on your doorstep is worth at least twice as much as that 10 miles away and only you can decide how much it is worth to you personally. 30 years ago I paid building land prices for a quarter of an acre of land that gave me a rear entrance, with road access, to my back garden. I have never regretted it and that rear access for vehicles to my field is invaluable. 


Possible contamination is not necessarily insurmountable. Look up ways of mitigating it. Again it depends how far you want to go. I assume the land is for sale at an attractive price as it doesn't sound the most visually appealing of plots.


As for the boundary - I would ask for it to be clearly marked out on the ground, and ensure the neighbours agree with it so there will be no subsequent arguments, before you buy.


It might be worth having a word with a solicitor about your worries to get things in perspective.
Rules are made:
  for the guidance of wise men
  and the obedience of fools.

WishfulThinker21

  • Joined Jan 2020
Re: Charge against property for market garden
« Reply #14 on: September 16, 2020, 01:48:01 pm »
This is what I'm up against.
Google maps provides an aerial timeline of events going as far back as 1940.
The scrappage/salvage activity appeared to start in the early 2000s so I won't include photos as far back as 1940.
Time line as per attachments.


« Last Edit: September 16, 2020, 01:51:44 pm by WishfulThinker21 »

 

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