Dropped kerb on freehold property with covenants

Samiad

Hi I was hoping someone might have some answers.

I recently moved into a freehold property that's part of a managed estate built in the 1950's, and now maintained bya housing association. The roads and footpaths are all adopted by the council but the green areas are managed by the association.

We've got permission for a dropped kerb from the council. However the association have given mixed messages about what we owe them. Most recently we've been informed of a £130 fee payable to them for permission. And additionally they want an unspecified ongoing payment for upkeep. 

I'm loathed to pay them anything of course. But my covenants do specify that I need permission for any works on my land. 

My argument is that the kerb isn't my land, and nether is it the association's, although they own the land underneath.  Furthermore a dropped kerb it's not of any detriment to anyone , it even frees up a car space on the parking bays and even if they did maintain the kerbs it shouldn't cost more in upkeep than a normal kerb. 

I'll wondering what people think. I can stomach a one off fee,  but can they charge whatever theyd like even though it feels like extortion. An ongoing fee is crazy to me, as is the fact that this is on council managed roads.

The dropped kerb is something we are pretty desperate for and theres a few around the area already. Unfortunately we've already informed them about the proposed kerb so trying to fly under the radar would be difficult now.

Any advice would be great thank you.

Section62

Samiad said:

Hi I was hoping someone might have some answers.

I recently moved into a freehold property that's part of a managed estate built in the 1950's, and now maintained bya housing association. The roads and footpaths are all adopted by the council but the green areas are managed by the association.

We've got permission for a dropped kerb from the council. However the association have given mixed messages about what we owe them. Most recently we've been informed of a £130 fee payable to them for permission. And additionally they want an unspecified ongoing payment for upkeep. 

I'm loathed to pay them anything of course. But my covenants do specify that I need permission for any works on my land. 

My argument is that the kerb isn't my land, and nether is it the association's, although they own the land underneath.  Furthermore a dropped kerb it's not of any detriment to anyone , it even frees up a car space on the parking bays and even if they did maintain the kerbs it shouldn't cost more in upkeep than a normal kerb. 

I'll wondering what people think. I can stomach a one off fee,  but can they charge whatever theyd like even though it feels like extortion. An ongoing fee is crazy to me, as is the fact that this is on council managed roads.

The dropped kerb is something we are pretty desperate for and theres a few around the area already. Unfortunately we've already informed them about the proposed kerb so trying to fly under the radar would be difficult now.

Any advice would be great thank you.

Some photo's would help....

The answer may vary depending on where the boundary of the highway is relative to your boundary.  The Housing Association may own a strip of non-highway land between.  Have you checked for this?

If the highway authority adopted the roads (and footways) but the estate retained the freehold of the land then there are scenarios where they can legitimately charge you both one-off and also ongoing fees, even if the land is currently used for highway.  If there are covenants in place to this effect then you'd need legal advice on whether they are enforceable or not... it is a complex area of law.

It doesn't matter whether or not there is detriment to anyone else, and the change in maintenance requirement is also irrelevant if there is a legally enforceable agreement in place which says you have to pay.  The exact wording of the covenants will be crucial in working out whether they can enforce the fee or not.

Samiad

Sorry I didn't include a photo but the layout is very simple i forgot to include it. Simply theres our garden, then pavement then the curb onto the road, no green verge at all.

 The covenants are quite extensive. But the one section that's particularly relevant reads " the purchaser shall not... Make any structural or external alterations or additions whatever in or to the property. Or any part thereof without the prior consent in writing of the society such consent not to be withheld unless the society is of the opinion that the same may be detrimental to the safety privacy or reasonable amenity of anyone in the neighborhood area"

There might be another relevant paragraph but I think that's big one. Theres mention of fees for repairing roads and footways but that's prior to the adoption by the council, so surely that's obselete? 

Aylesbury_Duck

Another way of looking at it is:  Why should the council carry out modifications to their own property, free of charge, solely for your convenience?

You may think it frees space elsewhere, but it also deprives any other road user the opportunity to park at the roadside where the proposed kerb would go, and possibly on the road opposite if it's a narrow road, so it would be a detriment to anyone wanting to park there.  Councils often consider the effect on the safety of road users (with you reversing in or out of the drive), and the possibility of you being one of those inconsiderate people who parks two cars in line, blocking the path.  They've seen it all before.  Plus, some councils don't want to encourage the paving over of front gardens because it reduces the amount of permeable surface for water to drain through.

As for an annual fee, that also seems reasonable.  I'm sure you'd complain if after several years, the dropped kerb were to break up or be damaged.  Who would pay for its maintenance then?  You?

In short, your entitlement to a free driveway entrance is balanced by many other considerations and the needs of the broader community.

Section62

Samiad said:

Sorry I didn't include a photo but the layout is very simple i forgot to include it. Simply theres our garden, then pavement then the curb onto the road, no green verge at all.

 The covenants are quite extensive. But the one section that's particularly relevant reads " the purchaser shall not... Make any structural or external alterations or additions whatever in or to the property. Or any part thereof without the prior consent in writing of the society such consent not to be withheld unless the society is of the opinion that the same may be detrimental to the safety privacy or reasonable amenity of anyone in the neighborhood area"

There might be another relevant paragraph but I think that's big one. Theres mention of fees for repairing roads and footways but that's prior to the adoption by the council, so surely that's obselete? 

That paragraph is relevant to what you do within your own property boundary (so might cover building a driveway or hardstanding) - but there is no mention of a fee or ongoing charge?

Whether or not the sections on charges for roads and footways is obsolete depends on whether or not they have been adopted.  It is possible (for example) that the simple layout consists of a road (adopted) and a footway (not adopted), or even a footway which is part adopted and part non-adopted.

By the sound of things you need to ask the HA for more details on what charges they want to make, and their basis for making them.  Otherwise it is just guesswork what they are thinking.

Samiad

In response to Aylesbury_Duck. Perhaps I should have been clearer. We are already due to pay the council  £1800 for the kerb. My query is over paying fees to the covenant beneficiary, who no longer is responsible for said roads and footpaths.  And in regards to blocking others parking, there is no parking on the side of the road with the dropped kerb.  And we have a large front garden with no need to park irresponsibility over the pavement.

Anyway, theres a green area on the far side of the road, parking infront of it, then plain pavement on our side. There's no parking on the near side of the road. So it is certainly beneficial to our neighbors. Although this is possibly irrelevant to the legalities s stated by Section..

Truth be told, and again irrelevant to the legalities, but important for our motives. My missus has diagnosed OCD and has had panic attacks over being boxed in when parked, which is obviously irrational but as is the nature of anxiety. 

 

Samiad

There's a paragraph on fees and it says about paying for the maintenance of roads and footpaths. However both are 100% adopted, clearly labelled as such on our LAs website. 

I'm trying to get a straight answer from them, but 3 emails have led to 3 different answers, ranging from free to £130+extra. We think they may be confused since the housing on the  estate is 90% council owned or housing association owned, we're one of few private owners.

Samiad

Here's the kerb in question

Ectophile

As for an annual fee, that also seems reasonable.  I'm sure you'd complain if after several years, the dropped kerb were to break up or be damaged.  Who would pay for its maintenance then?  You?

Nobody pays an annual fee for a dropped kerb.  Once you have paid the council for the work, it becomes part of the pavement again, and maintenance is paid by your council tax.

Ms_Chocaholic

We had a dropped kerb put in many years ago; paid the Council a fee and then had the work completed by an approved contractor.  After work was complete, the Council then checked the work was up to standard and approved it (or not in our case, the company had used the wrong type of tarmac so had to re-do it - at no extra charge to us I might add but then they did approve it once it was rectified).  As it was up to Council standard then they continue to maintain the pathway.

Ms_Chocaholic

Are you sure they don't want the money off you to turn your front garden into paved parking.