When drafting a transfer of part it is important to consider the development as a whole to ensure the transfer captures all the easements, restrictions and covenants you will need as the site is developed.
It is important to review a layout plan when it is drawn up. It is at this stage that you can check the extent of the property being transferred and the ownership and maintenance of the boundaries.
The plan should conform to the Land Registry’s requirements and can be approved by HM Land Registry either as an estate boundary plan or as an estate plan.
When the transfer of part is being drafted consideration needs to be taken of the circumstances surrounding the particular transaction. This is to ensure that all the required easements to be granted and reserved are set out at the start of a development in order to minimise the need for matters to be rectified at a later stage which could prove costly.
Consideration needs to be given as to whether new rights need to be granted for the benefit of the property being transferred. Similarly, do new rights need to be reserved for the benefit of the land being retained.
Such rights will normally refer to matters such as access to the property, rights over shared footpaths or driveways; rights of entry for maintenance, rights of support and rights to connect into the service media.
A restrictive covenant will restrict the use and enjoyment of land (usually for the benefit of other land) whereas a positive covenant will impose an obligation on an owner which will require the expenditure of money.  They are put in place to protect the look of a development which is especially important if sales are still on-going.
Restrictive covenants  – examples of restrictions contained in a transfer of part used on a residential development are: only to use the property as a single private dwellinghouse; not to park any commercial vehicle or caravan, etc.
Positive covenants – examples of these provisions, again using a transfer of part on a residential development for illustration, are: works of repair and maintenance; to pay an amount towards the upkeep of a shared accessway, etc
The distinction between a restrictive covenant and a positive covenant is important when it comes to validity and enforceability. Generally a restrictive covenant will be noted on the title when the transfer is registered. For a positive covenant to remain enforceable a deed of covenant will need to be entered into on each transfer of the land.
If you need any advice on transferring part of a title, please contact a member of our commercial property law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.
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