Restrictive Covenants - parking on a local highway

Section62

Nobbie1967 said:

Might it be possible to get a copy of the legal advice from the council using an FOI request? Might be useful to send to the estate management to show the legal backing for your stance.

Legal advice would probably come under the statutory exemption (Section 42) if the council wanted it to - but the OP has apparently already been given a copy.

Moreover, it is just an opinion. Not necessarily a matter of fact.  The estate management might have a different legal opinion.

User_220321

It’s also interesting that the lease says you cannot run a business from your home. Also, if we’re going with your argument here that nothing can effect a restrictive covenant ... then there couldn’t possibly be made up rules / exemptions in various contracts to make this covenant obsolete for an individual. If we’re going to look at it from your point of view of course. Also the van is most certainly not used when maintaining the estate. The maintenance people have different vans from what neighbours say. His role is admin so unless he has a lot of paperwork then... actually with all these letters, then maybe a van is required! 

User_220321

Section62 said:

Nobbie1967 said:

Might it be possible to get a copy of the legal advice from the council using an FOI request? Might be useful to send to the estate management to show the legal backing for your stance.

Legal advice would probably come under the statutory exemption (Section 42) if the council wanted it to - but the OP has apparently already been given a copy.

Moreover, it is just an opinion. Not necessarily a matter of fact.  The estate management might have a different legal opinion.

It’s not written in the form of opinion, it is written as factual information based on a section 28 adoption of a road on this estate in particular; which quotes the exact wording of the lease. 

I don’t think we need to go into this though, again I am just asking whether anyone has had this situation. People who haven’t could argue what could and couldn’t happen indefinitely and it’s just a waste of time really. 

HampshireH

I'm definitely interested in you keeping this posted updated with the outcomes OP.

So many don't which is a shame.

Section62

User_220321 said:

It’s also interesting that the lease says you cannot run a business from your home. Also, if we’re going with your argument here that nothing can effect a restrictive covenant ... then there couldn’t possibly be made up rules / exemptions in various contracts to make this covenant obsolete for an individual. If we’re going to look at it from your point of view of course.

That isn't (and wouldn't be) something I've said. Lots of things can affect the enforceability of a covenant.  The point I have made is that the adoption of the roads doesn't automatically affect the covenants unless the specific wording of the lease/covenants causes that to happen, or the covenants are for areas of land which will be within the boundary of the public highway.  The covenant you are dealing with is a private agreement between two (or more?) parties made in connection with the ownership of private property, not ownership of the road.

Because covenants are a private agreement it is possible for the parties to the agreement to vary them, or agree not to enforce them, providing the covenants are written in a way which permits that (i.e. no third parties to whom a conflicting obligation exists).

So the freeholder (for example) could give exemption for the Maintenance Co to park a commercial vehicle anywhere on "the estate", provided there is no other restriction (such as a waiting and loading restriction on a public highway)

User_220321 said:

Also the van is most certainly not used when maintaining the estate. The maintenance people have different vans from what neighbours say. His role is admin so unless he has a lot of paperwork then... actually with all these letters, then maybe a van is required! 

It doesn't matter.  You haven't seen the van being used for maintaining the estate in the time you've lived there, but an agreement could for example say that the Maintenance Co needs to provide a van for use in emergencies. Until an emergency happens nobody will see the van used for that purpose. Such an emergency may never happen.

If you decide to go into legal battle with these people you shouldn't make assumptions about what they can and cannot do based on your own observations or hearsay.  You need to be able to prove they are in the wrong (if they are).

User_220321 said:

It’s not written in the form of opinion, it is written as factual information based on a section 28 adoption of a road on this estate in particular; which quotes the exact wording of the lease. 

"Opinion" is used to describe advice given by a solicitor or barrister where (typically) they set out the facts of the case, relevant legislation and case law, and their opinion on how the known facts can be interpreted in light of the law. The advice the solicitor has given is opinion because it contains interpretation of the facts.

It is really important that you don't mistake that advice for some kind of proof (the kind you might get in a judgement from a court) and rely on that in a legal fight with the ManCo.  It is not what you seem to think it is.

User_220321 said:

I don’t think we need to go into this though, again I am just asking whether anyone has had this situation. People who haven’t could argue what could and couldn’t happen indefinitely and it’s just a waste of time really. 

Unfortunately it is very unlikely you will find anyone here who is in the same situation, unless other people living on your estate are also posting here.  The situation is unique to you and the estate you are living on, due to the wording of the legal agreements you have entered into.

Have you looked at the old thread that @naedanger found and linked to?  On that one @Land_Registry made the same point I have - that the wording is what is important and particularly the meaning of "estate".  The OP in that thread concluded (correctly IMO) that the restrictions apply to the homeowners and not the public.  Which is entirely consistent with the status of the road as a public highway.

There is a difference in that OP was only making a general enquiry, whereas you are dealing with someone actively trying to enforce the restriction - but I see they are still around on the forums so it might be worth you contacting them to see if their situation ever developed further.

In case it is unclear, I hope that you do manage to get this situation resolved to your satisfaction and do feedback on how it goes.  My concern is that some of the advice you've been given on here and externally appears to be based on assumptions and beliefs that aren't as robust as they seem.  You have plenty of cheerleaders encouraging you to fight, but litigation is very unpredictable (and expensive) and they won't be around to pay the bills for you if it goes wrong.  An honest litigation solicitor will tell you to avoid it at all costs unless you are very sure you will win.  They don't make very good cheerleaders.

User_220321

Ok thanks, we do have a plan and funds. I cannot put everything on a public forum.

I’ve never heard of emergency grass cutting but it might be a thing. 

Let’s just leave it now. I shall update this in the future.

ProDave

Do you have friends or relatives nearby?  If so register the van at their address.

Problem solved.

martindow

ProDave said:

Do you have friends or relatives nearby?  If so register the van at their address.

Problem solved.

Hmm, not sure this is a good idea.  Vehicles are supposed to be registered at your actual address.  DVLA and the your insurance company might not be over-impressed.

NameUnavailable

Section62 said:

In essence it is comparable to the situation where the management co have refused permission for someone to keep a cat due to a 'no pets' rule, but the injured party is aware that other leaseholders have got dogs and no action is being taken against them.

If you read that thread carefully you will see that the OP wants to keep a cat but the lease prohibits pets unless the freeholders give permission.

The dogs referred to are dogs that visitors bring to one of the other flats and/or dogs that live in other properties on the same development (which might be houses).

User_220321

Just to update everyone, the route we are taking regarding the charges is taking longer due to COVID. However, in the meantime, the freeholders have had their legal department review the whole situation, every piece of correspondence and all legal documentation involved. They have concluded that as the roads are adopted, we are free to park the van on the public highway and there is no breach on our behalf. 

Obviously the final task is to have the charges removed and stop this person leading through threats, intimidation and unnecessary aggravation on matters which are of no concern to them. 

This has taken up countless hours of my time in phone calls and emails but I dread to think of all of the people who possibly haven’t been quite so determined.