Covenant Issue - Fencing - New Build House

housegirl83

Hallo

Just after some advice about a covenant on my new build house. Some brief history on the property below:

- property is a terraced house which is leasehold
- it is a new build property that is one of about 30 ish plots
- I own the house and the freeholder of the land is a private company (also the original developer)
- Lease is 999 years from 2012 (when the development was completed)
- I have owned the house for 2 years

I have a private back garden and when I purchased it the original 'fencing' around the edge was very poorly constructed (just posts and a few horizontal slats), unsecure (the posts were not concreted in properly - just crumbling, and the fence itself was generally wobbly and unstable) and did not provide any privacy whatsoever for either myself or my neighbours. To be fair on the developer, I suspect he never intended for it to be a proper domestic garden fence, but merely something to show the boundaries of each property clearly whilst he was selling.

Recently I've finally had the funds to be able to put up a fence around the border of my back garden (which is completely private and not seen from the front or any road) just for aesthetics and privacy more than anything. Its a nice simple fence, well within normal planning regulations (all panels are under 6ft - a mix of 6ft, 5ft and 4ft 6) and is within my boundary, so not affecting anyone else. I spoke to my neighbours to check they are also happy with it and both have said they're fine and it's no problem (one set of neighbours are renting tenants rather than owners though, but still happy). Others on the same row as me with the same lease and same type of property have erected similar fences (look and feel) at a similar height (some have even extended their property by adding another room into the back garden and built large sheds too!). Hence why I didn't think anything of it to put my own fencing up!

What I've just realised though is that in my lease (not even sure what made me take a look at it!) from when I purchased the property there is a covenant which states;

- I have to maintain and keep in good repair/condition the fence marked with an inward T on the plan
- not to alter/heighten/move position of any wall or fence whether or not it is on the boundary of the property

The first statement was originally pointless, as there was no way I could keep the original fence in good repair/condition as it was terrible to begin with, however obviously now I have a proper fence up I'm more than happy to look after it, so that's not really an issue. However, by putting these new fences in (which are much safer, more secure, more attractive and more substantial than the original fence) I have obviously altered the original, and it is a little higher.

The point is I didn't request the freeholder's permission to do this (even if I had I'm not sure he would have got back to me as he's really difficult to contact). Although as others have done the same, and by my putting this up I have substantially improved both my house and the land (as well as increased privacy and security for my neighbours) I'm hoping this won't be an issue, but would just like some advice on if this could be an issue, realistically how enforceable it would be and what the repercussions might be if it was enforced?

If any other info would help, please just ask!

Huge thanks for your help in advance!

princeofpounds

Chill. The builder is highly unlikely to find out and highl unlikely to care.

Dan-Dan

Thats a lot of words to describe such a tiny , miniscule (non) issue

as above , chill out

housegirl83

Hi guys

Thanks for your input - I guess I'm just a stress head (I'm the most honest law abiding person ever, so don't like the idea of getting into trouble!)

PS: the builder/freeholder is likely to find out as he actually rents out a couple of the properties on the estate so would be able to see my fence if he ever inspected/visited his own properties, so I'm well aware he will at some point see this (so I've obviously not done it sneakily or deliberately!)! I guess this is why I'd like some more advice really on what potentially might happen!

TBagpuss

This kind of covenant is generall imposed by developers so that the can keep the estate looking reasonable while the plots are being sold - they are very unlikely to care once they are no longer trying to sell off the neighbouring plots.

If the developer did object, he could try to enforce the covenant by requiring you to to return the fence to its original height etc. Assuming of course, that he has good enough evidence of how it was.

And even then, you could probably argue that yours was substantially the same - e.g. if you are replacing a 6' high wooden fence with a difference 6' high wooden fence, even if your is in more solidly built.

I agree with the majority. Don't fret.

moneyistooshorttomention

I would imagine his reasoning for that covenant was because there are people who will take the opportunity that comes with changing a fence to move that fence (somehow it usually seems to move in the neighbours direction;)) and thus the fence-owner has managed to steal a bit of the neighbours land from them (whether deliberately or inadvertently).

In the developers position, I would be fine about a fence that was absolutely exactly in the same position as the last one (so that I could see clearly that no land had "changed hands" in the process of changing fence).

DaftyDuck

moneyistooshorttomention wrote: »

I would imagine his reasoning for that covenant was because there are people who will take the opportunity that comes with changing a fence to move that fence (somehow it usually seems to move in the neighbours direction;)) and thus the fence-owner has managed to steal a bit of the neighbours land from them (whether deliberately or inadvertently).

In the developers position, I would be fine about a fence that was absolutely exactly in the same position as the last one (so that I could see clearly that no land had "changed hands" in the process of changing fence).

Money, you are getting seriously fixated by your own "land theft" issues... it really isn't the issue here, honestly. It's a new-build. Such covenants are as common as muck.

Alias_Omega

The builder will notice if the fence is in poor condition, blown down or painted pink.

Something which looks like for like, will not even be noticed.

On the plus side, in 999 years, that fence will not!! exist..

housegirl83

Hey all

Huge thanks for all your replies.

I feel I should probably clarify - it's definitely not a like for like fence - the fence that was originally there wasn't really a fence at all (more like just something to mark a boundary) and was scruffy, made from poor quality wood and very poorly constructed.

The fence I have just put in is higher and much better quality (it's an actual proper fence!). So although a great improvement, it's definitely not like for like!

DaftyDuck

Relax. There are often terms like this in newbuild contracts, stipulating type of fencing, hedging, keeping it in order. It keeps the site looking pretty and tidy while the developer has some interest in it.

If it is tidy, you are really unlikely to have any fuss. In fact, you are as likely to get in trouble for it as England are to win enough tries to win this footgame ball competition stuff they are getting so worked up about.

Anyway, you can always sell your fence to Dan-Dan @#3... I think he still needs one

makeyourdaddyproud

You should have kicked it down in the night and called them back to make "good". Stand by while they rebuild ensuring the install it correctly the second time.