Enforcement of Restrictive Covenents

Legacy_user

I wish to put up a 2ft (60cm) high fence between my neighbour and myself. The house and the estate were built in 1980's. There is a covenant that prevents the installation of any fence, wall or other form of enclosure. Some people have established hedges or fences. The hedges are about 4ft tall so they were started many years ago. There are fewer fences but I have seen a few at 1ft , two at 18 inches and one at 2ft.

My original fence was damaged by people standing on it to get to my neighbours (cutting across the lawn). It sat there for years and no-one complained. However, it was only 1ft.

Now I want to put in a taller fence to stop this. It will be well under the council limit of 1m but anyone who is savvy will know of the covenant.

So...
If the neighbour objects to the fence (because it stops them cutting across the lawn), what can they do about it?
What are my options if I need to fight it or ignore it and what could be the cost?

FYI: Wimpey say about challenging covenants:
"Covenants are there for your own protection and unfortunately Taylor Wimpey will not enforce these. We advise you to get Independent Legal Advice to pursue the matter further."

So any ideas?
Thanks

G_M

Who is/are the Beneficiary of the covenant? Only the Beneficiary can enforce.

But the key here is clearly the neighbour. Amicable agreement is always best with neighbours - have you spoken to them> suggested a fence? Asked if they mind?

Come to that, who owns the boundary?

And who owns the existing broken fence?

matttye

Seek legal advice.

You may be able to buy a single premium indemnity policy which will cover you if the covenantee seeks damages against you.

System

How can I find out who the beneficiary is from the text of the covenent?

matttye

moneyunwise wrote: »

How can I find out who the beneficiary is from the text of the covenent?

It depends on whether the land is registered or unregistered, how many times it has changed hands, etc. Covenants are not always enforceable against later owners of the burdened land nor does the benefit always pass to new owners of the land which benefits.

You need to seek legal advice - nobody on here can help you properly as we don't have access to your deeds or Land Registry information.

sheramber

Will a 2ft fence stop people?

I would plant a row of prickly bushes as a deterent.

Davesnave

sheramber wrote: »

Will a 2ft fence stop people?

I would plant a row of prickly bushes as a deterent.

Agreed. Seems like a case for Berberis darwinii and some of his mates.

AdrianC

moneyunwise wrote: »

FYI: Wimpey say about challenging covenants:
"Covenants are there for your own protection and unfortunately Taylor Wimpey will not enforce these.

There's your answer. Only the beneficiary of the covenant can enforce it - and they've said they won't. So... it's fair game. Get those leylandii planted...

Land_Registry

The odds are that the covenants benefit each and every house/plot owner on the estate - as you post later the key is in the wording.

The developer, Taylor Wimpey, is likely to have imposed a generic set of covenants on each and every plot sale - they do this to preserve the look and feel of the development whilst they sell off the plots, which can take some time.

The benefit is invariably for the rest of the development and as that is split into 30, 40, 50 plots then so is the benefit in most cases.

The restrictive covenants will run with the land and bind subsequent owners and the wording will reveal that.

So the wider issue is what is the likelihood of anyone with the benefit proving that they have the benefit and seeking to enforce it - that's where the legal advice comes in and on which you can then assess any risk.

I have read numerous posts such as yours so the first thing to cover is that not everyone knows either about the covenants and also won't always understand their impact for example.

Neighbours breaching the same covenants might also seem to lessen the risk with regards awareness or attitude. However neighbours can be very different and of course may change over time so those attitudes, awareness etc can all change.

As G_M mentions discussing and agreeing with the neighbour is often the best place to start but if you are considering indemnity insurance then that may not always be the best option as it may invalidate any chance of getting such insurance as you have highlighted the issue and made a potentially benefiting party aware - that makes the risk far greater.

So....a benefiting landowner could well seek to enforce the covenant and often this starts with a solicitor's letter. You can ignore it and go ahead so the neighbour's next option is to take legal action, which of course attracts a greater cost. It is the courts who act as the arbiters in such matters

Richard_Webster

Wher covenanats like this are concenred an aggreived neighbour will either go baqck tot eh original developer and asak them to enforce, and they may not really be interested in spending money in realtion to an estate they no longer have any real interest in - also they may well not have retained any nearby land that they can say has the benefit of the covnenats. As Land Registry Reprsentative has suggested, it will usually be the neighbours who can enforce.

Problem for them is the cost. They can get a solicitor to write threatening letters (at a small cost) but actaully going to court will be significantly more expensive for them. OK if it actually ends up in court they will probably get an order for costs against OP - but will they want to take the risk of fronting the legal costs in the hope of getting such an order (and enforcing it)? Usually they hope someone else will pay for it.

Another possible route might be the Council. Or at least that's what the neighbours might think. If it is purely to do with covenants the Council will have no powers and won't be interested.

However it is possible that there is a planning condition preventing the erection of fences and they might be prepared to enforce that. If there are other fences, bushes etc in the road and OP's is an odd one without then they might not fancy the Council's chances if OP were to appeal against an enforcement notice.

If OP erects the fence and nobody complains or takes action for a year then it isi usually possible to obtain an indemnity policy in respect of the restrctive covenant. Very difficult to get a policy before that.

purdita

Hi
Is there any way of finding who now owns the covenant when the original holder went into liquidation several years ago?
We are buying a bungalow built in 1939 with a restrictive covenant preventing any development outside of the building line and no sheds etc.
Most of the houses on the street have been extended and we want to do the same and build a double garage in the front garden.
The Land Registry title still refers to the original developer but could the covenants have been sold on to someone else?
Thanks