Restrictive Covenant 'Breach'

sillyhilly

Hi all,

I was hoping that you could assist, as I've generally not found an answer to my specific question either on these forums or Google.

In short, there is a restrictive covenant on my property regarding the erection of walls or any 'boundary' in my front garden. I imagine that this was put in by the Developers back in the 60s when they were developing and selling the estate.

I have sought consent from the Developers, which was granted, provided that LA permission was obtained - which it was. As such, I built a small wall at the front of my property.

I've now received a letter from solicitors acting on behalf of a neighbour asking me to remove the wall, otherwise legal proceedings will be started.

To confirm, is the consent from the Developer sufficient to discharge this covenant? Does the neighbour have a leg to stand on?

societys_child

What do your own deeds say about you having any benefit from the covenant if a neighbour did the same? What I'm trying to say is, does the covenant extend to each and every homeowner , or was it put in place solely for the benefit of the developer?


Don't know if it'd make a difference, someone with more idea might be along shortly . .



I'd be tempted to ignore (maybe get legal advice) until they actually did start any action, and take it from there.


Could always remove the wall before court action if it looked like it was all going pear shaped, and they did in fact have a case, leaving them nothing to complain about. But that's just me . .

M_Python

I would've thought that providing you have the Developers' consent and LA permission in writing, you have nothing to worry about.

Davesnave

M_Python wrote: »

I would've thought that providing you have the Developers' consent and LA permission in writing, you have nothing to worry about.

Me too, but even if not, it costs little to obtain a solicitor's letter and much more to start court proceedings, so there's a very good chance it's hot air.

My first response would be to do nothing.

If things turn out unexpectedly and the neighbour proceeds, having established the benefit of the covenant, then removal is an option. However, most judges would expect court to be a last rather than a first resort, so might not look kindly on the neighbour if some form of mediation hadn't been attempted first.

What's the back-story and when were the permissions obtained/acted upon?

sillyhilly

Yep, all in writing.

I believe that the covenant would be for each and every homeowner, as it doesn't appear that this would be solely levied against my property and not others. I will check neighbours deeds though just in case.

sillyhilly

Davesnave wrote: »

Me too, but even if not, it costs little to obtain a solicitor's letter and much more to start court proceedings, so there's a very good chance it's hot air.

My first response would be to do nothing.

If things turn out unexpectedly and the neighbour proceeds, having established the benefit of the covenant, then removal is an option. However, most judges would expect court to be a last rather than a first resort, so might not look kindly on the neighbour if some form of mediation hadn't been attempted first.

What's the back-story and when were the permissions obtained/acted upon?

There's not generally a back story unfortunately. I haven't been approached by any neighbour, and this letter came very much out of the blue.

No work was carried out until a good month after the permissions were obtained. The consent from the Developer was obtained well before any planning application was even raised.

System

A covenant benefits a particular named party or parties. Who was named as the beneficiary/beneficiaries for this covenant: the developer, or the developer and your neighbours? If your neighbours are named as beneficiaries in addition to the developer, your neighbour is within their rights to enforce the covenant. But I doubt they are also beneficiaries.

What is the exact wording of the covenant on your deeds?

sillyhilly

The exact wording is as follows:

Not to erect or suffer or permit to be erected any fence hedge gate wall or other form of enclosure between the front of the buildings erected on the land hereby conveyed and the front boundary line of the land hereby conveyed

There is no distinction of who benefits, however the deed refers to the Developer, Purchaser and Sub-Purchaser. It does not state that it is for the ultimate benefit of neighbours.

There is also another clause, as follows:

The vendor or purchaser reserve the right to modify waive or release all or any covenants stipulations or restrictions relating to any adjoining or neighbouring land now or hereafter belonging to the vendor or purchaser

It seems to me therefore, that the only parties who actually can enforce any covenant would be immediate/adjoining neighbours but even then this can be waived by the Developer (as I'm assuming a similar clause would be entered into their deeds, too?). The neighbour complaining does not adjoin my property.

FreeBear

Davesnave wrote: »

My first response would be to do nothing.

But then writing back to the solicitor would incur a fee for reading the letter. That would add a few quid to the neighbour's bill. A simple "we acknowledge receipt of your letter dated <date> and will give due consideration to its contents" - Probably cost £100 for them to read it, and then another £100 to forward it on.

System

Yes, it sounds like the sender of the letter doesn't have much of a leg to stand on, since they are not the stated beneficiary of the covenant. Sometimes they are just looking to extort money in cases like this.

shortcrust

FreeBear wrote: »

But then writing back to the solicitor would incur a fee for reading the letter. That would add a few quid to the neighbour's bill. A simple "we acknowledge receipt of your letter dated <date> and will give due consideration to its contents" - Probably cost £100 for them to read it, and then another £100 to forward it on.

I’m sure Davesnave's right, but I’d also be tempted to be a little mischievous. Perhaps ask for clarification on a couple of points? I’d also be tempted to do a little something to the wall (top with some planters, paint, fix a trellis etc) to send the message that as far as I was concerned the wall's staying.

Terrible ideas of course. Just asking for trouble.:)