Neighbour claims I have broken the Covenant

agarnett

My experience of actually owning on estates is limited (only four built in 1937, 1960, 1980 and 1995), and being totally honest now, I realise that I haven't a clue what covenants may have applied on the first three! Nevertheless with the most recent, I am referring to the practice across several estates developed by another UK-wide housebuilder, and the covenants their (major international firm of) solicitors evidently crafted a couple of decades ago i.e. not so recent.

I only mentioned Scotland as a warning to OP that most of us are probably discussing what we know of the apparent legal position in England and Wales, and that if their's was a Lovells development in Scotland (my Googling suggested they were most active up North!) then the law and typical "estate rules devices (like restrictive covenants) might be substantially different.

Land_Registry

There's no rule of thumb with this sort of thing and every developer is different.

My observations are based on only 35 years of looking at Registers and deeds and nothing surprises me as the devil is always in the detail

Historically with E&W developments they started in Victorian times when private landowners were the builders of their day and the need for housing, in the way and on the scale we now understand it, began.

Restrictive covenants were as important then as they are now and the laws has not really changed but the focus has over the decades since.

Victorian dwellings tend to focus on not having chickens (risk if disease apparently), not running your home as an asylum, and not selling alcohol (intoxicating liquor) to name the most popular three.

Move on to the 60s/70s/80s and you are looking at different social issues and these top three switch to not being a nuisance or annoying and as posted here not changing things too much or making the development look 'poor' whilst the developer sells all the plots.

At the same time modern developers woukd retain bits of land inc the roads but the council would adopt the latter.

Move on to the 90s and beyond and the roads now get transferred to the council and all bits of land are sold off. Idea is to sell everything or give it away and have no involvement at all. Especially re covenants and responsibilities re who does what. Hence time-barred convents being rare in my experience as it implies they are or want to be involved later on re the non time-barred ones

The key though, as stated previously, is that the restrictive covenants run with the land so don't disappear when the developer has sold everything. Yes time-barred ones may go but they are unusual as posted.

Releasing or removing them at a later date is notoriously difficult as the benefit is not registered so there is often doubt as to which land in fact has that benefit and therefore who needs to agree to their removal or release. OP has probably 9 benefiting landowners but you could have many many more

It can happen but invariably if it does we don't remove them completely but just say a deed has been created which expresses that they are no more. A rare application though as it's just too difficult to even get close to identifying those to be involved, let alone covering the legal costs involved in drawing up such a deed.

So that leaves breach and actual enforcement and others have already posted views on this. My own way of explaining this is to use a tennis match scenario and it can be applied to many property disputes be they covenants, boundaries or more such as noisy dogs/kids, parking, parties etc - the ball is the dispute so do you keep hitting it back and forth or can you serve an Ace or play a winning shot?

Covenant exists. I know I'm breaching it but I've served now
Neighbour points out I'm breaching it - nice return
I know I am but so what, let's play on...... nice shot
Neighbour asks solicitor to send you a letter explaining legal position .... plenty of slice on that one. Usually a winner actually
Ok, this is getting serious - do I try and return it with a counter argument with top spin that it's no longer legally binding in my solicitor's view or some other argument?
Too late, drop shot instead but neighbour makes it and takes me to court (excuse the pun)
Hmmmm, I can't make that so you win the point neighbour, well played.

Terrible analogy I know but the law can help and solicitors coach but it's all about what appetite each player has. That appetite can be driven by much more than an understanding of the law and the risks involved inc cost, time, stress and so on.

So the game looks simple enough, the rules are fairly black and white but it really comes down to who understands it all and wants to play. Knowing that when it comes to match point they have a number of aces in the locker and they know that ultimately a Judge will decide in their favour (and not Hawkeye)

Hope that works as a general explanation both historically and in tennis terms - apologies if it seems to trivialise the matter as that is not my intention

NeilCr

It's not that bad an analogy!

You could add that if you breach a covenant you may have more than one neighbour against you (and/or possibly a management company) so you'd be on that court alone against at least two - and maybe more. - opponents.

EachPenny

Land_Registry_representative wrote: »

Terrible analogy I know but the law can help and solicitors coach but it's all about what appetite each player has. That appetite can be driven by much more than an understanding of the law and the risks involved inc cost, time, stress and so on.

No, it is a superb analogy. Having played the part of 'umpire' (within an organisation that residents see as a free way of settling (or pursuing) disputes when the original beneficiaries of covenants are untraceable) I'd add that the trick to resolving situations like this is to encourage your opponent to have Pimms and strawberries together on the lawn and not even think about starting the match.

Land_Registry_representative wrote: »

...nothing surprises me as the devil is always in the detail
...
Victorian dwellings tend to focus on not having chickens (risk if disease apparently)...

Details indeed! My 1960's house comes with a restriction on keeping 'hens', but is silent on the subject of male chickens - which most people would regard as far more of a concern in an urban area

Land_Registry

EachPenny wrote: »

No, it is a superb analogy. Having played the part of 'umpire' (within an organisation that residents see as a free way of settling (or pursuing) disputes when the original beneficiaries of covenants are untraceable) I'd add that the trick to resolving situations like this is to encourage your opponent to have Pimms and strawberries together on the lawn and not even think about starting the match.

Details indeed! My 1960's house comes with a restriction on keeping 'hens', but is silent on the subject of male chickens - which most people would regard as far more of a concern in an urban area

G_M favours the Tea & cake approach which converts to Pimms & strawbs when SW19 season arrives - could not agree more as whilst we have boundaries we are all neighbours

Tracing the original beneficiaries is rarely needed as if the benefiting land has been sold on/split then the benefit has passed on too. The imposing deed will be the clue to identifying the benefiting land and that's the key re enforcement. Not a previous owner perhaps long gone or moved on.

And the poor chicken has had a rum deal down the years with restrictive covenants clearly. But it serves as a useful reminder as to the purpose of restrictive covenants. They are not whim and whimsy but genuinely 'selling points' as without them owners can be unrestricted and painting the right selling picture and control works but can change depending on social perspectives in play at any given time

Doubtless they will change again over the years and decades but once in play that's largely it so it all tends to come down to principles as well as awareness/understanding as to what happens next

Reminder - the OP's dropped kerb issue is rarely part of the covenant issue and one for the local authority to advice on normally if they have adopted or indeed own the road.

EachPenny

Land_Registry_representative wrote: »

Reminder - the OP's dropped kerb issue is rarely part of the covenant issue and one for the local authority to advice on normally if they have adopted or indeed own the road.

Yes, I think it quite possible that during the 'friendly' warm-up the OP mentioned, the terms 'covenants' and 'conditions' may have been misapplied. The OP says "...are strict conditions in place in the covenants. I might be wrong on the name..." - which more or less says as much.

In 'tennis match' disputes the local authority often adds a small army of spectators from a broad range of departments, usually with at least a couple of councillors added for good measure. In the days before email when everything was done in handwriting, we had special triplicate memo forms named 'ping-pongs' (proprietary?), which was very apt in this kind of dispute. Creative and lateral thinking were also essential job specification requirements

Davesnave

EachPenny wrote: »

Details indeed! My 1960's house comes with a restriction on keeping 'hens',

I'm not interested in scoring points here, but the Allotments Act trumps that.

If the cockerel is creating a nuisance, however, that's another matter.

Now where does that leave my hen that thinks she's a cockerel, I wonder? She's worse than the real thing! :rotfl:

EachPenny

Davesnave wrote: »

I'm not interested in scoring points here, but the Allotments Act trumps that.

If the cockerel is creating a nuisance, however, that's another matter.

Now where does that leave my hen that thinks she's a cockerel, I wonder? She's worse than the real thing!

That's interesting, it means my property's developer wrote in a covenant which was unenforceable even before it was written... lawyers hey! I've just been reading up on the Act, who'd have thought the Allotments Act could be so controversial

I think you have nothing to worry about if the council ever knocks on the door following up a complaint. All you need to do is explain that your hen "self identifies as non-binary gender" and the poor council officer will spend years negotiating with the equalities department working out whether they can take enforcement action

G_M

The tennis analogy is useful, but only if one sees things in terms of a winner and a loser.

The problem is that we have to continue living with our neighbours, longterm. Now I recognise that these days, in contrast to, say, the 70s and earlier, people live much more isolated lives, often barely recognising let alone knowing their neighbours.

But nonetheless there is a lot to be said for not alienating them more than one has to. Hence my tea&cake / pimms&strawbugs. If the issue (be it a covenant, boundary, dogs, noise, whatever) can be resolved through mutual understanding and compromise, that has to be preferable to batting legal arguements back and forth........

vqmismatch

Let us know how this one plays out.

Covenants I find quite interesting, certainly it would be virtually impossible with my hobbies to buy somewhere with many of the popular restrictions without crossing a few. I have no doubt where I currently rent will have covenants I am in breech of but are not mentioned in the contract, but as everyone seems to get on very well nobody has any reason to kick off.

I envisage that once I have the geographical stability to buy the cost of arguing any restrictions around parking and car maintenance will have to be priced into the purchase.

My parents have had enormous run-ins with one of their neighbours over people parking for mother's business which I could imagine would have been toxic if the neighbour had the opportunity to agitate on some form of enforceable covenant. As it is he just shouts frequently at the customers, a few of whom seem to respond by blocking his drive every time they visit. That estate was built in the 70s.