Restrictive covenant in freehold house

davidmcn

andyfa wrote: »

I think maybe I could argue that the use is in effect the same as a single family dwelling, even though is is not a single family.

I don't think there's a difference in your suggested alternative wording, but in any event as I said above I think anybody challenging you would need to demonstrate that you were doing something which made a material difference to the neighbours. Obviously it's aimed at prohibiting you turning it into e.g. an HMO, not to stop somebody sticking a lodger in the spare bedroom.

The sort of wording you've quoted is pretty much ubiquitous in any modern estate, in practice it doesn't stop people working from home or having lodgers etc.

andyfa

Given you're paying your solicitor to advise you about this sort of stuff - haven't you asked them?

They just said the there are covenants and they are to stay. Let us know if you have any questions.

SmashedAvacado

For a covenant to be enforceable there has to be someone with an ability to enforce it. That person is not the "developer" or a "neighbour" but rather than owner of the land with the benefit of the covenant (called the "dominant tenement" or "dominant land"). This is the only person who can enforce the covenant.

The covenant will only be enforceable where it actually benefits the dominant land (but the presumption would be that it does, and that would need to be rebutted). So for example, you, if challenged would need to show that your breach that had no negative impact on the dominant land. I imagine this would be fairly easy for the working from home scenario - but possibly less so for the HMO, if for example the HMO lead to more cars being parked / more noise etc.

davidmcn

andyfa wrote: »

They just said the there are covenants and they are to stay. Let us know if you have any questions.

So ask them your questions?

getmore4less

Once the developer leaves the site/area all those covenants that are there to keep the place "nice" get ignored.
ariels
sat dishes
sheds
fences
commercial vehicles
caravans trailers etc.
running a business
permission to modify(with a charge)
...

AdrianC

getmore4less wrote: »

Once the developer leaves the site/area all those covenants that are there to keep the place "nice" get ignored.

'course, in many cases, "nice" simply means "consistent" - so that the developer can sell the unsold new ones without resales looking more tempting.

NeilCr

getmore4less wrote: »

Once the developer leaves the site/area all those covenants that are there to keep the place "nice" get ignored.
ariels
sat dishes
sheds
fences
commercial vehicles
caravans trailers etc.
running a business
permission to modify(with a charge)
...

Some times

We own the freehold of our estate and some covenants are still enforced. Commercial vehicles, sheds, for example.

As said - if it doesn't bother anyone then you'll be fine. We had someone running a childminding business - that was an issue because the parents were parking all over the place. We were about to start trying to enforce the covenant when her tenancy ended

andyfa

For a covenant to be enforceable there has to be someone with an ability to enforce it. That person is not the "developer" or a "neighbour" but rather than owner of the land with the benefit of the covenant (called the "dominant tenement" or "dominant land"). This is the only person who can enforce the covenant.

The covenant will only be enforceable where it actually benefits the dominant land (but the presumption would be that it does, and that would need to be rebutted). So for example, you, if challenged would need to show that your breach that had no negative impact on the dominant land. I imagine this would be fairly easy for the working from home scenario - but possibly less so for the HMO, if for example the HMO lead to more cars being parked / more noise etc.

How could I prove that something has not happened? How many cars are too many? How many are enough? If the HMO has no more occupants than the usual house of the same size in the estate and no more that usual cars would that be OK?

andyfa

So ask them your questions?

Their answer will be full of caveats, therefore usually useless.

andyfa

For a covenant to be enforceable there has to be someone with an ability to enforce it. That person is not the "developer" or a "neighbour" but rather than owner of the land with the benefit of the covenant (called the "dominant tenement" or "dominant land"). This is the only person who can enforce the covenant.

I am not sure if I understand correctly. I says in the previous transfer that it is for the benefit of the others properties in the development. Does it not mean that any of the people leaving could claim that they are affected by any breach?

The covenant will only be enforceable where it actually benefits the dominant land (but the presumption would be that it does, and that would need to be rebutted). So for example, you, if challenged would need to show that your breach that had no negative impact on the dominant land. I imagine this would be fairly easy for the working from home scenario - but possibly less so for the HMO, if for example the HMO lead to more cars being parked / more noise etc.

There seems to be two things in this passage. One is the benefit of the dominant land and the other is the burden of proof.

Lets say that the benefit can be established. Would they owner of the dominant land have to prove that this has affected them, or could they just say you have breached the covenant and I would have to prove it has not affected them?