Enforcing Restrictive Covenants

Benal_2

There is a clause in my Deeds (below) which I am advised may prevent me from enforcing a covenant mentioned in the THIRD SCHEDULE. The argument given is that the neighbour I want to enforce the Covenant against bought his property after me and as it says, “FOR the benefit of the unsold remainder of the land………. I am not able to eforce against him, but he could enforce it against me.

It seems to me that the advice is reading the clause out of context by only taking regard of the start of the sentence and not what remains.

The Transferor says I can enforce the covenant because it is written in such a way so as to make it an Estate Covenant and all owners of land on the Estate can enforce it, but my legal advice says a letter written afterwards is not acceptable.

My wording in my deeds and those of my neighbours are virtually identical.

The Third Schedule has a restrictive covenant which says our Shared Driveway must be kept open and free from obstruction.



2._____ FOR the benefit and protection of the unsold remainder of the Estate or any part or parts thereof and so as to bind so far as may be the Property into whosesoever hands the same may come the Transferee hereby covenants with the Transferor that the Transferee and the persons deriving title under him will at all tines hereafter observe and perform the restrictions and stipulations contained in the Third Schedule hereto but so that the Transferee shall not be liable for any breach of this covenant occurring on or in respect of the Property or any part or parts thereof after he shall have parted with his interest therein PROVIDED that that the Transferor or its successors in title shall not "be prevented from developing or disposing of any part or parts of the remainder of the Estate free from any of the restrictions and stipulations mentioned in the Third Schedule or otherwise using the remainder of the Estate in such a manner as it or they shall think fit.

Richard_Webster

My understanding would be that if your property was first sold before the neighbours then you can't enforce the covenants against him unless there is an express declaration in the Transfer that a "Building Scheme" is intended.

You might be able to get a court to accept that a building scheme was implied but this could be very expensive.

Generally speaking trying to enforce covenants against neighbours is very much a last expensive resort. Presumably all attempts to be reasonable have failed?

Is this one of those shared driveways where you own one half width and the neighbour owns the other but you both have to drive over each other's part for it to be useful? if so, there may well be an express grant of rights to use the other person's half and so you might have a cause of action for preventing you exercising your rights regardless of what the covenants say.