restictive covenant - trees

geomot

We are just buying a house and have discovered that there is a restricted covenant on the house from 1965 that says if we want to remove any trees we must have permission from a named person - with no address or other details given about her (it looks like she was the wife of the person who used to own the land prior to our house being built - they lived in the "BIG" house next door to our new house and divided up their garden).

Her family no longer own the land and infact don't appear to live anywhere near anymore.

The people who now live in the BIG house are happy for us to remove the trees.

We do want to remove trees - mainly for the state of the foundations of our new house.

Our solicitor thinks that it probably isn't enforcible

Any thoughts?

Richard_Webster

This sounds like a case where you will have to just go ahead and remove the trees.

When you come to sell if the buyer's solicitor asks about it you might have to provide a restrictive covalent indemnity policy but I would worry about that later.

Catti

Having attended a course on Covenants and Easements only yesterday, this is like another of the examples we were given! My view would most certainly be that it is unlikely to be enforceable - the ability to consent can probably only be given by that named person, not her successors in title, and if she cannot be easily traced or found (assuming that she is still alive) then there is no one else who could enforce that covenant against you.

chappers

Before you go removing the trees, first check with the council that there isn't and protection order on the trees as the fines for breaching these can be high.
Even if there is a TPO you may be able to get permission if you can prove they are unsafe or causing serious damage.

sem9999

Yes TPO despite their name do not necessarily protect trees at all. Had a case where tree preservation officer ordered tree to be cut down even though totally healthy and under TPO because neighbours complained that the rear part of their back garden did not get enough sun, and therefore their vegetables were not growing very well...

Debt_Free_Chick

Bear in mind that removing trees can actually create the very problem you are trying to avoid. In particular, you mention that removing the trees will "save your foundations".

Are you sure about that? You will certainly alter the current equilibrium and you may even create heave/subsidence. I hope you've taken real advice on this