Restrictive Covenants - parking on a local highway

Section62

NeilCr said:

What's the actual wording of the covenant?

I think (not going to dig it out!) that ours says something like you cannot park a commercial vehicle on any part of the estate. I guess, if it's along those lines , they might think they are right even though the roads are adopted.

Nail on head.

The wording “Not to park any commercial vehicle exceeding 1000kg GVW on the property or any part of the estate (including any unadopted estate roads)” is open to interpretation.

Interpretation of that statement depends on whether/how "the estate" has been previously defined.

Alan2020

I am at a loss to understand what adopting a road has to do with legal covenants??
Just because the council/highways agreed to maintain your road doesn’t mean they are above the law and can extinguish covenants

I think the OP will loose big time. I might be wrong but please do let others know.

A lot of people get emotional, the reality is the estate owns the freehold of the road and can via the covenant bind the successors to the title regardless of who maintains the road.

People seem to forget even a supermarket car park is publicly available and you will need to have car insurance etc but cannot park a 30ton truck and sod off

NameUnavailable

Alan2020 said:

People seem to forget even a supermarket car park is publicly available and you will need to have car insurance etc but cannot park a 30ton truck and sod off

I think you will find that a supermarket car park is private property. The supermarket may allow customers to park there whilst shopping in said supermarket but many employ systems to limit the time and raise fines for people who park for too long. They can also close the car park when they want to.

On the other hand a public road is available at all hours and can be used by anyone. You or I could park a large truck in the OP's road and what can the management company do about it?

Section62

NameUnavailable said:

You or I could park a large truck in the OP's road and what can the management company do about it?

Nothing.  But only on the basis I suspect neither you nor Alan2020 have signed a potentially legally binding agreement with a third party regarding the use of that road.

In the OP's case I think it is less clear - the full wording of the covenants/lease etc needs to be reviewed - in particular what is meant by "the estate".  The OP suggests the council's legal department have already done that - which might offer some comfort - but council legal departments are not infalliable.

Personally I wouldn't go in guns blazing until I'd obtained my own independent professional legal advice. Or at the very least made sure I fully understood what makes this maintenance bloke think he is so right.

NameUnavailable said:

On the other hand a public road is available at all hours and can be used by anyone.

Unfortunately that isn't correct.  For example, aside from the restrictions on use the traffic authority can make by order (TRO/TMO), a planning authority can also (indirectly) restrict use of public highways by conditioning planning consents.

Although I suspect it is unlikely to be the case for the OP (their enquiries to the council should already have thrown it up as an issue) to the best of my knowledge it is possible for conditions/covenants to be in place which restrict the nature of use of certain public highways by individual owners/occupiers. Whether or not they can be enforced is another story.  The OP seems to be dealing with someone who appears to think they can.

naedanger

The following similar thread may be interesting, especially the posts from the Land Registry Rep. However I don't think it reached a completely definitive conclusion. 
https://forums.moneysavingexpert.com/discussion/5210013/can-restrictive-covenant-apply-to-public-road/p1

[Why does the restrictive covenant explicitly state that that unadopted roads are covered but not make a similar statement in respect of adopted roads? Personally I think the reason is the obvious one - which is because adopted roads are not covered by the covenant. However if the matter was about to go to court then at that point I would probably consider getting legal advice.] 

Bigwhitevanman

Exactly, the wording says, “including UNADOPTED roads” why doesnt it say “including all roads” or in fact “including ADOPTED roads”
so by default, adopted roads are unaffected by this covenant. The adoption removes them.

And they all lived happily ever after.

User_220321

Bigwhitevanman said:

Exactly, the wording says, “including UNADOPTED roads” why doesnt it say “including all roads” or in fact “including ADOPTED roads”
so by default, adopted roads are unaffected by this covenant. The adoption removes them.

And they all lived happily ever after.

This is exactly what we have been told in regards to the wording and a similar thing is written in the letter. We have had independent legal advice, subsequently this was to put it to the local highway authorities as they have a legal obligation to protect public rights - one of which is the right the use and park (of course as long as this is within their parking regulations), by all types of user including residents and the public alike. It is important to note that the letter we have from them states that all of the lease and restrictive covenants have been reviewed and their judgement is that we can park there free from restrictions has been established. 

I think it’s also a huge factor that he parks his own van on said roads - he clearly knows this is ok. I also have a letter to a previous resident who had complained about a van and he responded admitting that there is nothing he can do (this was another director’s van at the time).
It all seems very inconsistent. One resident has parked vans there for 8 years and only ever had a warning... we parked one night and received a charge. It’s all ridiculous.
 

User_220321

Alan2020 said:

I am at a loss to understand what adopting a road has to do with legal covenants??
Just because the council/highways agreed to maintain your road doesn’t mean they are above the law and can extinguish covenants

I think the OP will loose big time. I might be wrong but please do let others know.

A lot of people get emotional, the reality is the estate owns the freehold of the road and can via the covenant bind the successors to the title regardless of who maintains the road.

People seem to forget even a supermarket car park is publicly available and you will need to have car insurance etc but cannot park a 30ton truck and sod off

Apparently, the adoption of a road under section 38 of the highways act does actually make the wording of the lease obsolete...
That’s why we are having the issue of charges. All lease documents and wording have been reviewed by the principal solicitor at the local highway agencies, as has the final certificate of adoption. However, if I do lose big time, I will be sure to let you know.

ratechaser

Alan2020 said:

I am at a loss to understand what adopting a road has to do with legal covenants??
Just because the council/highways agreed to maintain your road doesn’t mean they are above the law and can extinguish covenants

I think the OP will loose big time. I might be wrong but please do let others know.

A lot of people get emotional, the reality is the estate owns the freehold of the road and can via the covenant bind the successors to the title regardless of who maintains the road.

People seem to forget even a supermarket car park is publicly available and you will need to have car insurance etc but cannot park a 30ton truck and sod off

No, just.... no. It's not that the council/highways have just 'agreed to maintain your road' - on adoption they move from being private property to public highway. And become subject to a different set of rules (or rather laws) entirely. Including statutory rights (and of course restrictions) on parking that no private arrangement could override. Just think about it from the other direction - if the council put yellow lines on that adopted road, do you think that the management co could agree with any new residents that they could safely ignore those yellow lines and park at will because it was 'their estate'? How well do you think that would end?

As for the supermarket car park analogy - as has already been said, that's private property - if the supermarket so wished they could install barriers, and they certainly do tend to employ parking companies that 'manage' the parks - but the can't issue 'fines' because it's PRIVATE PROPERTY. You most certainly could park a lorry there and 'sod off' and they would have a very hard time doing anything other than writing tickets for what amounts to a contractual breach of parking T&Cs. 

Bigwhitevanman

An adopted road is a road that is maintained at public expense and “road adoption” is a term used to describe the local authority taking ownership of a ‘private street’. You also have a statutory right of way over an adopted road which also includes footpaths.

Not all roads are adopted – many roads are “private” which means that they are maintained either by residents or by a management company set up for this purpose who may also maintain other common areas on a housing estate such as lighting or recreational areas.

This above article taken from a solicitors website, clearly makes the separation of an unadopted road, that may be maintained by a management company 
against an adopted road which is public.
so as the OP’s covenant clearly states UNADOPTED roads, there is a separation of residents liability and any restrictions imposed by !!!!!! Turpin who lives on your estate.
Highway robbery