Restrictive covenant breached

Bingjamin

Hi all, 

I recently felled a problematic tree in my front garden as I was under the impression I could do so, given it was on my land (land registry confirmed) and it had no TPO nor was it on conservation land (also confirmed).

In doing so I have been made aware that there is a restrictive covenant in my deed stating I need to ask permission from the transferor prior to doing so. The transferor is the original housing association (until 2006) who managed and owned the properties, who id never heard of or dealt with prior to now.

As it stands they are not aware of the breach, but I have a feeling at some point a disgruntled neighbour may inform them.

What am I facing if they do find out? Will they care given its not land they look after? Is there anything i can do in the meantime to mitigate the risk?

Thanks.

justcat01

How did you find out about the covenant after felling?

rexmedorum

Bingjamin said:

Hi all, 
...
As it stands they are not aware of the breach, but I have a feeling at some point a disgruntled neighbour may inform them.

What makes you think this? Are there any neighbours that have complained to you? I think the original association is unlikley to care, it's been 15 years, but I'm no expert so could be wrong.

Slithery

Bingjamin said:

Will they care given its not land they look after?

Only they can answer that question.

Martin_the_Unjust

1. Has any one else in the street or estate etc done the same?

2. How will your neighbours know that you didn’t have permission?

Bingjamin

Yea, one neighbour expressed his disagreement with my decision, he also mentioned the housing association to me but didn't really know exactly what we was referring to. My response was as I'm freeholder I don't deal with a management company.

I then came across the covenant after speaking with my brother in law who's a quantity surveyor and subsequently checked my deed after he suggested there may be something there.

I don't know for sure that the neighbour will report it, but there is a chance.

Thanks.

Bingjamin

Martin_the_Unjust said:

1. Has any one else in the street or estate etc done the same?

2. How will your neighbours know that you didn’t have permission?

Trees have been taken down in the past but rear garden trees I think, much less obvious and most likely a long time ago.

Only way they would know is speaking directly with the management company. 

My feeling is they won't care. They don't maintain the land and it was 15 year ago since they transferred the property  but just want to hear others opinions.

Section62

Bingjamin said:

I recently felled a problematic tree in my front garden....

In what way was it problematic?

If the stump has been ground out the easiest thing to avoid future problems is to plant a replacement of the same species as near as possible to the original... assuming the wording of the covenant mentions something about replanting, as they typically do.

The usual reason for covenants of that type on newish development is the planning requirement for the developer to have a landscaping/planting plan which is approved as part of the planning consent.  The condition usually says something to the effect that the landscaping has to be maintained in accordance with the plan.

Obviously as plots get sold off the new owners could just remove all the plants that the plan required - so covenants are used to stop this happening (without consent) and often with a condition that anything which dies or needs to be removed has to be replaced like for like.

eddddy

Section62 said:

The usual reason for covenants of that type on newish development is the planning requirement for the developer to have a landscaping/planting plan which is approved as part of the planning consent.  

Presumably, if removing the tree is breaching a planning condition - the local planning authority could decide to take enforcement action (if somebody reported it to the planning authority).

I guess it would probably then be a case of planting a new replacement tree, or applying for retrospective planning consent to vary the original planning condition.


I suppose it might also be a bit messy if you decide to sell the property, and you're asked if you've done anything in breach of the planning conditions. The buyer's solicitor might get a bit twitchy if you say you've cut a tree down, in breach of planning conditions.

Grumpy_chap

Bingjamin said:

Hi all, 

I recently felled a problematic tree in my front garden as I was under the impression I could do so, given it was on my land (land registry confirmed) and it had no TPO nor was it on conservation land (also confirmed).

In doing so I have been made aware that there is a restrictive covenant in my deed stating I need to ask permission from the transferor prior to doing so. The transferor is the original housing association (until 2006) who managed and owned the properties, who id never heard of or dealt with prior to now.

As it stands they are not aware of the breach, but I have a feeling at some point a disgruntled neighbour may inform them.

What am I facing if they do find out? Will they care given its not land they look after? Is there anything i can do in the meantime to mitigate the risk?

Thanks.

Was the tree "problematic" in that you simply did not like it or want it there?

OR, was the tree "problematic" in that a tree surgeon provided a report about the health of the tree and possible safety concerns if action was not taken?

If the latter, then you (reluctantly and remorsefully) did what you needed to do and the remedy, if anyone takes action to enforce the covenant, would be to plant a replacement.

Doubt anyone will take any action to enforce the covenant.  Often it becomes lost in the mires of time who can actually enforce a covenant anyway.  Only the party that benefits from the covenant can enforce.