Restrictive Covenants

Elliott.T123

I recently added a wall to my front garden which I knew breached a covenant but was under the impression that only the developer was able to challenge and was happy to take that risk. (It is a small tasteful wall). Unfortunately some neighbours round the corner have taken a dislike to us for a number of reasons, yesterday I had a knock at the door from the local council enforcement officer. She checked the wall was under 1m in height and was happy that from the councils perspective they had no issues with anything I had done however she did warn me that the neighbour could take civil action directly.

I was under the impression that the original covenant holder was the only person who could do this? The holder is now Persimmons.

The exact wording on the title is:

No building structure fence wall or erection other than the dwellinghouse garage and outbuildings (if any) being erected by the Transferor shall be erected on the said property without the consent in writing of the Transferor nor shall any caravans or boat be placed therein unless in a screened position to be approved by the Transferor.

I am hoping that they are unable to take action in the first place, however my plan was that if they do decide to try and take action contact Persimmons and get permission in which case I would definitely covered.

Short version: Could my neighbour try to enforce the covenant or are Persimmons the only ones who can?

Section62

Elliott.T123 said:

I recently added a wall to my front garden which I knew breached a covenant but was under the impression that only the developer was able to challenge and was happy to take that risk. (It is a small tasteful wall). Unfortunately some neighbours round the corner have taken a dislike to us for a number of reasons, yesterday I had a knock at the door from the local council enforcement officer. She checked the wall was under 1m in height and was happy that from the councils perspective they had no issues with anything I had done however she did warn me that the neighbour could take civil action directly.

I was under the impression that the original covenant holder was the only person who could do this? The holder is now Persimmons.

...

Short version: Could my neighbour try to enforce the covenant or are Persimmons the only ones who can?

The BiB is often claimed/suggested, but not always true.

The only way of finding out for sure in your case would be checking the wording of the deeds very carefully - the extract you've quoted isn't enough, it only covers the need for consent, not the actions that can be taken in the event of breach.

Elliott.T123

Thank you, having read further there is no mention of the actions that can be taken but it does mentioned that the covenants are for the benefit of the whole estate and so I suspect that means neighbours do count as beneficiaries and as such could challenge the covenant.

I guess the best course of action is to sit tight and if a letter comes through the door suggesting legal action to contact persimmons and ask permission at that point and then I am covered.

ciderboy2009

Personally I would contact Persimmon Homes now.  You're probably going to have to get it when you come to sale (or pay for one of those stupid policies the solicitors seem to love nowadays) so might as well get your paperwork in order before you need it.

eddddy

As you move forward with this, bear in mind that when you eventually sell, you'll probably have to declare all this to the prospective buyer. So you probably want to resolve it in as friendly way as possible.

As things stand, you've breached a covenant and you're in a dispute with a neighbour about it (and the neighbour has complained to the council, and may or may not take legal action). That kind of thing might scare buyers away.

They might not want to buy a property where the neighbours might be negative towards them, and maybe give them a hard time, because of the wall. (And/or somebody might take legal action about the wall.)


(You could argue it's unfair, because it's the neighbours being difficult and not you. But people don't want to buy houses with difficult neighbours - so it makes sense to try to defuse these situations before they become too serious.)

 

Section62

Elliott.T123 said:

Thank you, having read further there is no mention of the actions that can be taken but it does mentioned that the covenants are for the benefit of the whole estate and so I suspect that means neighbours do count as beneficiaries and as such could challenge the covenant.

I guess the best course of action is to sit tight and if a letter comes through the door suggesting legal action to contact persimmons and ask permission at that point and then I am covered.

Not necessarily, one entity (the developer/council) could put a covenant in place for the benefit of the wider community, without others having any ability to directly enforce.  (In some circumstances they could take action against the developer/council, but that's a different topic)

Is this an 'open plan' development?  I.e. nobody (originally) had front walls/fences/hedges?

Elliott.T123

Yes it is "open plan", although with permission you are able to build a wall/fence below 3ft in height which mine is.
I have reached out to Persimmons and am waiting to hear back.

Section62

Elliott.T123 said:

Yes it is "open plan", although with permission you are able to build a wall/fence below 3ft in height which mine is.

Whose permission?

Are there planning restrictions on front walls/fences? (discount what the planning officer told you when they visited, they could be wrong (e.g. referring to PD rather than specific conditions))

"Open plan" typically involves no boundary feature at all, or less than (say) 18".  3ft boundary features are on the high side for open plan rules... although it isn't impossible that's the case here.

Elliott.T123

Thank you to all responses. I am incredibly impressed with Persimmon, I have been in contact and have already received an email confirming that they approve the work and give me permission. I was expecting it to be far longer/harder and expecting a fight so thank you for the great advice!

SusieT

Elliott.T123 said:

Thank you to all responses. I am incredibly impressed with Persimmon, I have been in contact and have already received an email confirming that they approve the work and give me permission. I was expecting it to be far longer/harder and expecting a fight so thank you for the great advice!

That is very good news for you, hopefully it will take the wind out of any green eyed neighbour as well. If you are careful with the wording, and they speak to you about it, you can just say that yes you do have permission in line with the covenant, just do not mention that permission was given after both the build and the complaint being made!

Bendy_House

Elliot, keep this info under your hat. Just say a verbal 'Non!' to your neighbour, accompanied with a thumb-to-nose-and-wiggled-fingers if you wish, and hope they start legal action.

Keep saying 'Non!' until the actual summons arrives, and then knock on their door and go "TRA-LAAAA!", holding up the letter with the biggest grin you can manage....

I half jest.

Almost certainly any action being considered by your neighbour would have to be paid for out of their own pocket, and their Legal protection, for example, wouldn't take this on. I say this because my in-laws lived on a (Persimmons, too, as it happens) estate where a covenant forbade the parking or caravans out t'front. New neigh turned up - knowing this in advance - and parked their shaggin' huge 'van outside, and when in-laws phoned up their LP for advice, they were told they wouldn't take this on.