Restrictive covenant advice

Gabbyhxxx

Hi :-) 

we have recently bought a home which we love and couldn’t be happier with. We loved the area and were looking forward
to a quiet life here. 

Within 2 days of living here we received a letter through the door from a neighbour asking for money to be sent to a neighbour hood bank account which goes toward the upkeep of the area. No problem wasn’t a large amount and although we thought it strange to post a letter through and not Introduce themselves we thought we would just wait until someone knocked
on and would send the money then (wasn’t going to send money via a bank transfer without finding out a few facts first) 

then 2 weeks after moving in I receive a knock at the door firstly asking if I received the letter and secondly telling me that they had
contacted the land registry regarding land at the back
of our house (which we do own - deeds prove this) but it is in the contract of a restrictive covenant (formed in the 60s) that this land (although ours) can not be fenced and they will want us to take the fence down (fence been up over 10 years) she explained they had this dispute with previous owner and when it went to court in 2015 they won’t but he never moved fence. Now when we bought the house our solicitors did find info on this but then after contacting local council we were given documents that stated the land was approved to be changed from ‘communal area’ to private garden use for our property. We did take out indemnity insurance with regards with the covenant. 

Now the annoying thing is this few foot of land in our lovely well kept and landscapes garden would add absolutely nothing to anyone and would just become a patch of vacant grass but it seems that quite a few
of the neighbours ‘covenant or coven more fittingly’ are adamant they want the fence moving down. 

I have looked into it and in the document from 1960s it only says about not fencing the area so
im wondering if a long row of hedges
or conifers would be acceptable? 

I have obviously contacted our solicitors as they missed out telling us alot if this Information and I feel a bit daft for not questioning it more.

does anyone have any similar experience? Or advice on how to handle the situation? My husband is furious about the very cold welcome we have had to the neighbourhood but I am trying to be reasonable and hope we can sort it out amicably. 

All advice welcome :-) thanks! 

MrSaver96

You need to contact your indemnity insurers as they will cover your legal expenses in dealing with the matter if the insurance coverage was taken out for this reason. Failing that, either your solicitors will need to deal with it as they should have reported this to you in the report on title (If they didn’t, you could have a claim for professional negligence) or you should engage another firm to deal with it on your behalf and recover the costs of doing so from your previous solicitors (although expect a fight about it). 

DayDreamerandGeneralWaster

The vendor should have told you there was a dispute with the neighbours. It seems you have inherited it. 

You need to review the wording of the covenant if it specifically says fences you may be able to put a low hedge up to a certain height. As you have said the ownership isn't in dispute. What difference does it make to them if there is a fence or not? 

I'm not sure l would be inclined to put money in this bank account without many more details. 

princeofpounds

The vendor and solicitor clearly did say something about the problems, as the OP has indemnity insurance! Perhaps some statements were untruthful however, so look back in the SPIF and any related enquiries to check.

What the council think of permission to use the land in a specific way isn't likely to be particularly relevant, although your description is rather vague so any clarification would be useful.

What is relevant is whether the covenant exists, and who the beneficiaries are. The neighbours agitating for change may not be the beneficiaries at all - often covenants are in favour of land that a developer or original landowner keeps, not neighbours.

And yes, if it says 'no fence', you can border it with bushes or trees.

Go back to your solicitors, ask for more explanation and discuss with them whether this triggers the indemnity insurance or not. Also, dig out the court case - if the neighbours 'won', why did the fence never move?

Finally, as DD&GW asked - what really is their problem here? Do they think they should have communal access to this land? A covenant against fencing doesn't given them any right to use the land. Is that written separately into their title deeds? I jsut ask because you talk about it being communal in the past, according to the council (which isn't really a planning use category which is part of the reason why I said it sounds vague)

DayDreamerandGeneralWaster

I think you need to think carefully about a hedge in place of  a fence in terms of if it really solves the issue they have with it.

bouicca21

Are you sure 'quite a few' of the neighbours want the fence removed or are you just being told they do?  Does your fence block a footpath?  What would be the effect for others of removing the fence?  Why do they care?

Gabbyhxxx

bouicca21 said:

Are you sure 'quite a few' of the neighbours want the fence removed or are you just being told they do?  Does your fence block a footpath?  What would be the effect for others of removing the fence?  Why do they care?

It seems that one couple In particular Are the self elected heads of the covenant and are the ones pursuing the issue. She seems very clued up on everything and has 3 other family member that live on the estate (40 houses in total) 

DD&GW - yes I agree I won’t go putting any hedges up just yet. Just seems so petty as if we move our fences it will literally be a piece of grassed area that will not be used. There is no foot path It’s just a patch of Surrounded grass that they refer to as the communal area Although I’ve took a walk up everyday and it’s been empty and doesn’t look like it is ever used. 

I obviously feel a little naive that didn’t look into this more when buying but our solicitor assured us it was nothing to worry about and was an ancient covenant and we wouldn’t face any issue and previous owner hadn’t declared these issues on the sellers information form (he did however declare a dispute regarding a different matter all together). 

princeofpounds

Gabbyhxxx said:
self elected heads of the covenant 

...

I obviously feel a little naive that didn’t look into this more when buying but our solicitor assured us it was nothing to worry about and was an ancient covenant and we wouldn’t face any issue and previous owner hadn’t declared these issues on the sellers information form (he did however declare a dispute regarding a different matter all together). 

Well, you'll be glad to know there's no such thing as 'heads of the covenant' so find out the details I suggested earlier re the court case and the beneficiaries.

Thanks for the detail on what your solicitor said. Normally what the solicitor has said to you would be correct*, but it's quite clear that the vendor failed to declare this particular dispute then. So you, and/or your insurers, may have a claim against them.

*practically anyway, if not 100% legally, hence the insurance being required. Personally I think the way the law treats 'zombie' covenants is quite wrong, as it leaves people with all sorts of breaches and no real assurance as to whether they will be pursued or not. 95% of the time, they aren't.

davidmcn

Bear in mind that, if this is covered by the indemnity insurance, for a valid claim you'll need to intimate it to the insurers and let them handle it i.e. don't try to start your own negotiations with the other parties, and don't tell them you've got insurance.

Brock_and_Roll

Leave it to the insurers - they will be more than a match for an self-appointed "covenant heads" - will pretty soon tell them to sling their hook.

FinallyStoppedLurking

Surely with the knowledge of a court case that had already been decided in favour of the restrictive covenant, no insurance policy would cover you?! I'd check whether the policy is actually going to be valid first.