Restrictive covenants on a property

nocando

Hi. I hope this is the correct place for this and it hasn't been asked before. I appreciate it gets into a debate on law so ultimately i may need legal advice anyway...

I have just bought a home from a housing association who are a front for a well known developer (they basically took the build over).

In my TP1 there is a restrictive covenant that states:

"Not to make any alterations or additions to the exterior of the property or any structural alterations or additions to the interior of the property nor to erect any new buildings  thereon nor in any way to interfere with the outside of the property without the prior consent of the transferor which shall not reasonably withheld".

I am wanting to erect a small porch covering the back door to prevent dirt getting into the home, as the patio doors lead from the living room to the garden.

I have been advised that because of this clause i need permission and was sent a form for a leaseholders detailing various costs for this work.

As a freeholder i contested this as the fees are related to leaseholders and don't seem fair nor appropriate. In fact the fees are as much as the porch and total over £1,000.

My argument is that the covenant is vague and ambiguous (basically restricting any alteration) and does not specify enough detail to apply to realistic alterations to protect the land. A small temporary porch in my mind wouldn't affect the price of the land. And that the ambiguous wording covering any change makes it impossible to enforce as it would cover such tasks as putting a nail in the wall, cutting the grass and planting a shrub. 

Secondly there is no mention of fees in the tp1 clause wording and it seems that seeking permission is ultimately a money generating exercise as the developer has already suggested they would grant permission but need to take a fee for this. My understanding is that they cannot have restrictive covenants for the sole purpose of monetary gain. Which seems to be the case.

My third point is that the form and associated fees relate to leaseholders, and include such fees as adjusting the contract and having various inspections. 

So is there anyone that can provide an insight into the process as it seems going down the legal route is costly?  However at the same time I feel this is not a fair and reasonable clause and would like to challenge it, perhaps for the good of the general buyer, who are often held to Ransom by developers with service charges and the like.

Thanks.

Shaztastic3000

The clause isn’t fundamentally unreasonable (and in any case, you agreed to it). You can ask for the basis underlying the fee though - there may be things they need to do that you haven’t thought of.

nocando

Thanks may I ask on what basis do you think its not unreasonable. Have you got experience in this and any case law. Tried to find some case law examples but couldn't find any. The reason I thought it was unreasonable was because the text is so wide ranging and therefore would in theory apply to any alteration. How could that be enforceable?

Nebulous2

Are they still building? 

Usually new estates have a host of restrictions, no commercial vehicles being a very common one. We weren't allowed rabbits, nor to plant trees at the front. They want the place to look as good as possible for potential buyers 

More or less as soon as the developer is off site, and sometimes before, people start ignoring these. That often causes friction between neighbours but is rarely if ever enforced. 

The fact the paperwork reflects leasehold conditions suggests two things to me.
1. This is rare, and they don't have the systems in place to deal with it. 
2. They would rather you didn't, and the charge may be partially intended to deter you. 

3or4magpies

We have restrictive covenants on the property were selling, and the one we're buying. Both prohibit building alterations without permission from XXX (different people in both circumstances). These covenants are extremely common and also often broken as people don't remember what's in their deeds before extending etc. I would say the wording you've quoted is pretty standard from my limited experience and does indeed intend to stop you making any alterations to the property unless you get permission (ie. it's meant to be vague to cover ANY alterations!). Whether you choose to abide by it is up to you. I'd check on the fee payable, it might be a nominal couple of hundred or similar.

nocando

Nebulous2 said:

Are they still building? 

Usually new estates have a host of restrictions, no commercial vehicles being a very common one. We weren't allowed rabbits, nor to plant trees at the front. They want the place to look as good as possible for potential buyers 

More or less as soon as the developer is off site, and sometimes before, people start ignoring these. That often causes friction between neighbours but is rarely if ever enforced. 

The fact the paperwork reflects leasehold conditions suggests two things to me.
1. This is rare, and they don't have the systems in place to deal with it. 
2. They would rather you didn't, and the charge may be partially intended to deter you. 

It's a strange one because the developer is officially off site but they are fronted by a housing association, and that's who i deal with. But the housing association obviously didn't build the houses they got a rather large developer to do it, who have subsidiaries still on site. Although they're not directly associated with them. The housing association are obviously more used to dealing with tennant's and leaseholders, hence why all their paperwork is geared towards them and not freeholders. However they are insisting that they apply to both.
Im interested to see or know of cases that have gone to court, especially if the wording is so vague as I can't see how that could be upheld by a judge. Like you mention i do think they are there to deter.
I also wonder how many people don't realise they have these on their deeds, as it is pretty common from what it seems.
In terms of the fees it is well over £1,000 and this is standard for anything and applies to both leaseholders and freeholders. I'll dig them out and put them here. If it was a couple of hundred I wouldn't mind so much. But it does seem to be a money generating exercise, which i didn't think they could do in law as it has to be about protecting the land.

Murphybear

When we bought a bungalow in a tiny village there was a restriction that we were not allowed to keep pigs on the property.  Fortunately we didn’t want to 

[Deleted User]

Why did you agree to it in the first place if its unreasonable?

frogglet

We bought a freehold  Redrow house with a similar covenent regarding construction on the property.
 We wrote and asked permission for an extension which included a front porch. 
We sent the plans There was a cost , but not a huge amount. We got permission. 
Its to stop hideous things being added to houses.
We forgot when we built the conservatory. We bought an indemnity when we sold.

wilfred30

nocando said:

My argument is that the covenant is vague and ambiguous (basically restricting any alteration) and does not specify enough detail to apply to realistic alterations to protect the land. A small temporary porch in my mind wouldn't affect the price of the land. And that the ambiguous wording covering any change makes it impossible to enforce as it would cover such tasks as putting a nail in the wall, cutting the grass and planting a shrub. 

In what way would it be temporary?  Do you intend to take it down after a few months or something?
Using cutting the grass and planting a shrub as examples of a potential breach is just plain ridiculous.

OldMusicGuy

I've lived in two new builds with lots of restrictive covenants. The wording is perfectly clear - you can't add that porch without prior permission. You agreed to it up front, so you will be in breach of the covenant if you go ahead. Planting a shrub may well be covered in other restrictive covenants, in our last house we were not able to remove or change any of the original planting without prior permission. Cutting the grass is maintenance, not altering the appearance of the property. And you are right, the permission fees can often be a nice little earner after the build.

However, you have to ask yourself what will happen if you breach the covenant. Who will find out, who will report you to the beneficiary of the covenant and what, if any, action they will take. Like others said, most covenants are in place to stop people changing the "look" of a development while there are still properties to sell. Once the developers are gone, no-one usually cares. On our last development, we broke several covenants as did many of our neighbours (and I was chair of the residents' committee!). The original developer never visited the site, and the managing agents were so useless they had no idea about the covenants. So we found that as long as what everyone did was reasonable, no-one complained to the freeholder of the common areas and so no action was taken.

However, there are plenty of threads on here where neighbours try to use restrictive covenants against other neighbours to stop them doing things. It sounds like your neighbours wouldn't care about this, so that seems unlikely. So if you go ahead without permission, how will the HA/developer find out? Although you have now alerted them to the fact you might do this....

Even if they do find out, what's the worst they can do? They can ask you to take it down by threatening legal action. There's not much else they can do. I guess if you held out against this and it went to court and you lost, you might face some (possibly hefty) legal fees.

Best action is probably to question the cost of the fees and if you can't get those reduced, just wait a while and do it anyway, provided you are prepared to take on the risk that you might have to take it down at some point.