Restrictive covenants on a property

nocando

OldMusicGuy said:

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.

Cheers thanks, I think you are right. I suspect there's a lot of this that goes on and a lot of people don't even realise they have them on their deeds.
In reply to the question from someone else as to why I agreed, well that's another story. The solicitor / conveyencer didn't really point it out and I had a lot of trouble with the purchase and sale from that side, so much that im getting heavily compensated / reimbursed. 
As for planting, as mentioned, they are sometimes included and do include wording to ensure the garden doesn't become over grown for example. But my point was, that i understood that the covenant needs to specify this rather than being generic for it to be enforceable.  Anyway there have been some helpful and informative replies in here.

davidmcn

It needs to be something material before it matters, really. Nobody's going to be spending time and money on legal action about something trivial, and I doubt a court would look kindly on them even if they did try. Which is also why you're unlikely to find much in the way of relevant caselaw, as it's hardly likely anybody will have pursued things to the appeal courts.

As you'll see from other comments (and other threads here), it tends to be something which is only a concern at the point of sale, as purchasers want any past breaches to be somehow tidied up (either by getting retrospective consent or an indemnity policy).

OldMusicGuy

nocando said:

 But my point was, that i understood that the covenant needs to specify this rather than being generic for it to be enforceable.  

You're wrong there. Can you imagine how long the TP1 would have to be if it specified every single thing you could not change? The wording is very clear, you can't alter or add to the property without permission, which should not reasonably be withheld. Adding a small porch is clearly adding to, and altering, the property. Banging a nail in the wall might fall under this but most people would reasonably assume it did not, and anyway how would they find out? If they did find out and took you to court for banging a nail in the wall, you can imagine what a judge would say. But you can also imagine that a judge might take a different view of a small porch, especially as you did ask permission, so you clearly knew the covenant applied.

The bigger issue it appears is the fee for granting permission, which does seem to be unreasonable. But sadly there's nothing in the TP1 that covers the cost of granting permission. 

nocando

OldMusicGuy said:

nocando said:

 But my point was, that i understood that the covenant needs to specify this rather than being generic for it to be enforceable.  

You're wrong there. Can you imagine how long the TP1 would have to be if it specified every single thing you could not change? The wording is very clear, you can't alter or add to the property without permission, which should not reasonably be withheld. Adding a small porch is clearly adding to, and altering, the property. Banging a nail in the wall might fall under this but most people would reasonably assume it did not, and anyway how would they find out? If they did find out and took you to court for banging a nail in the wall, you can imagine what a judge would say. But you can also imagine that a judge might take a different view of a small porch, especially as you did ask permission, so you clearly knew the covenant applied.

The bigger issue it appears is the fee for granting permission, which does seem to be unreasonable. But sadly there's nothing in the TP1 that covers the cost of granting permission. 

Thanks, thats helpful. So what routes do I have to challenge the fee? Is it just through direct negotiation or is there any other way of doing this? Maybe a stupid question but is that more to do with trading standards?
They have hinted that this is something they would grant permission for subject to the fee being paid.