Restrictive covenant on house built 40 years ago

sammyjammy

Nice little earner for them and they can still say no after that - its  a risk you take now you've informed them I guess.

canaldumidi

anotheruser said:

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

That person does not just say "yes" though. He will have to spend time looking at the proposal. Dig out the relevant file to look at the covenant. Consider the impact of the proposal, whether on his company, or neighbouring properties. He may also need to instruct a surveyor or other professional to look at the proposal, and then possibly compile a report with a recommendation for his boss(es) to consider..

Once they've done so, it might have to go to a legal department for sign off, and for approval (or rejection) to be notified to the applicant.

As for automatic expiry of covenants, why? My neighbour has a covenant allowing me to use his land to access the mains water supply. I don't want that to expire!

kipsterno1

Our last house had a similar covenant. Any extension, building alteration or garden shed needed to be approved by the builders. When we decided to add a rear extension the first letter I wrote was to the builders for approval. They requested a cooy of plans and a fee. In conversation with my neighbour I told him that I had to pay this fee which made him laugh. He had added an extension some years earlier, said he was not aware of needing permission and wouldn't be paying any fee.

Fast forward eight years when he was selling the house and he caming knocking on my door to ask if I had the address of who he needed to write to to get approval for his building work. Getting it sorted delayed his house sale.

Woolsery

Section62 said:

anotheruser said:

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

Restrictive covenants do more damage than good these days.

They should automatically expire after a set amount of years.

Why?  The restriction that prevents my neighbours or I keeping hens is just as valid now as when the houses were first sold.

In that particular instance, not so. With the keeping of hens, a covenant cannot override the provisions of the Allotments Act 1950, which allows the keeping of chickens (and rabbits) on any land, not just allotments.No covenant can overrule Statute law.

The only qualification to this is that they must not cause a nuisance. A nuisance isn't defined, but it could be noxious smells, or more commonly, the noise created by cockerels. They do like to compete. Last year we had 4 strapping boys out of a hatch of 5 and they reminded us of that sad fact all the way up to Christmas...

canaldumidi

Woolsery said:

Section62 said:

anotheruser said:

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

Restrictive covenants do more damage than good these days.

They should automatically expire after a set amount of years.

Why?  The restriction that prevents my neighbours or I keeping hens is just as valid now as when the houses were first sold.

In that particular instance, not so. With the keeping of hens, a covenant cannot override the provisions of the Allotments Act 1950, which allows the keeping of chickens (and rabbits) on any land, not just allotments.No covenant can overrule Statute law.

The only qualification to this is that they must not cause a nuisance. A nuisance isn't defined, but it could be noxious smells, or more commonly, the noise created by cockerels. They do like to compete. Last year we had 4 strapping boys out of a hatch of 5 and they reminded us of that sad fact all the way up to Christmas...

You're right of course about the Allotments Act 1950, but that does not detract from the more generalised point Section62 was making.

Many covenants provide useful long-term protection. Yes, some become effectively redundant or outdated, but that does not mean they should ALL "automatically expire after a set amount of years".

Woolsery

canaldumidi said:

Woolsery said:

Section62 said:

anotheruser said:

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

Restrictive covenants do more damage than good these days.

They should automatically expire after a set amount of years.

Why?  The restriction that prevents my neighbours or I keeping hens is just as valid now as when the houses were first sold.

In that particular instance, not so. With the keeping of hens, a covenant cannot override the provisions of the Allotments Act 1950, which allows the keeping of chickens (and rabbits) on any land, not just allotments.No covenant can overrule Statute law.

The only qualification to this is that they must not cause a nuisance. A nuisance isn't defined, but it could be noxious smells, or more commonly, the noise created by cockerels. They do like to compete. Last year we had 4 strapping boys out of a hatch of 5 and they reminded us of that sad fact all the way up to Christmas...

You're right of course about the Allotments Act 1950, but that does not detract from the more generalised point Section62 was making.

Many covenants provide useful long-term protection. Yes, some become effectively redundant or outdated, but that does not mean they should ALL "automatically expire after a set amount of years".

At least the situation is clear though. With some situations there's a point at whch the ability to vary what's in the builder's covenant isn't clear. This isn't good

Take the pedestrianised, open plan part of the 80s estate my father lived on. There were supposed to be no fences or large shrubs etc in the front gardens, but at a particular time one or two owners decided to vary that because the outlook was very bland concrete slabs and grass. They could not be sure the changes made would be allowed to stand. At that time people were still gaining permission for conservatories, extensions etc from the builders and maybe they still are.

Today, all the front gardens are planted and there are fences too. It's a far more interesting scene and there's such a tiny chance of the original covenant being enforced, people buying there know where they stand in relation to it. However, originally, and for some time after, no one was clear what would be allowed.

There's also the flip side. Some people who buy into situations like that might actually prefer the security of open-plan, with few places for burglars to hide, or they might simply hate twee little palisade fences! Their interests are no less important, but in a situation like the above they may find their wishes ignored by the majority.

Years ago we moved into our house knowing that the local authority could, if they so wished, ask us to sell up and leave for not complying with a legal restriction. Obviously, we didn't think they would, or that they'd be successful if they did, but it was a legal grey area where a decision could go either way. Although it wasn't something that worried us greatly, it's a different feeling now enforcement is impossible because the law is at least very clear about time limits.

ABFG

diystarter7 said:

Interesting thread.
A house we lived in London built in the 1930's a EoT house had about 15-foot wide land to the side and we had long gardens. The covenant stated no additional properties were allowed on the land. I'm sure the company had finnished years ago. Out of interest if those that put restrictions in place were no longer around, are you then only restricted by planning laws, and building regs?

Covenants are always an interesting area! 

An interesting subplot to this question exists too. As I understand based on advice I've had (and I'm very much not a lawyer) if a covenant says that, for example "plans for any new building must be approved by Joe Bloggs Company Ltd", then if the company that can give approval no longer exists, the covenant doesn't apply any more. This does make some assumptions about specific wording.

More details here - "The High Court concluded in Crest Nicholson v McAllister that compliance with a restrictive covenant required the consent of a specific company (as opposed to successors in title).  The company in question had been dissolved and  the covenant was consequently deemed to have been discharged".

HRH_MUngo

There is a covenant on our bungalow which says that alcoholic beverages must not be sold within  (distance) of the property.  We have one large pub at one end of the road and a micropub round the corner.  The large one probably complies with this requirement, I'm not at all sure the micropub does!

Section62

Woolsery said:

Section62 said:

anotheruser said:

This is what I don't get.
This is a free £180 for a company, some person behind a desk, to say yes.

Restrictive covenants do more damage than good these days.

They should automatically expire after a set amount of years.

Why?  The restriction that prevents my neighbours or I keeping hens is just as valid now as when the houses were first sold.

In that particular instance, not so. With the keeping of hens, a covenant cannot override the provisions of the Allotments Act 1950, which allows the keeping of chickens (and rabbits) on any land, not just allotments.No covenant can overrule Statute law.

The only qualification to this is that they must not cause a nuisance. A nuisance isn't defined, but it could be noxious smells, or more commonly, the noise created by cockerels.

I'll need to check the exact wording of the covenant as it is possible it has the 'nuisance' qualification - it is a long time since I last looked at it.  The covenant was created after 1950 though, so either my recollection is faulty, or the developers made an error, or possibly a third or fourth option.

That third option may be as a result of you slightly mis-stating the law (the BiB).  Whilst it is true to say that no covenant can overrule statute law, we would have to consider the entire body of statute law, not just one provision from one act.  It is entirely possible for other legislation - including that promoted privately - to override (or disapply) other statute law in specific circumstances.  For example, Anytown Borough Council may have successfully obtained a provision to disapply S12 of the 1950 Act within the borough of Anytown.  In which case it would be lawful to enforce a covenant restricting the keeping of hens in Anytown, notwithstanding the 1950 Act. Note the inclusion of the words "or affect the operation of any enactment" at the end of 12(1).  There are in fact three qualifications, not just one.

This neatly demonstrates one of the risks of viewing covenants with an "X therefore Y" approach.  Sometimes there can be a non-obvious "unless Z" that a superficial approach to the law overlooks.

Then there is the fourth aspect to this. The 1950 Act does not prohibit the inclusion of covenants restricting the keeping of hens (or rabbits), so a developer may still lawfully include such a covenant - it is just that it cannot be enforced where the hen and rabbit keeping is within the provisions of the 1950 Act and any [other] enactment. 

Note that if the beneficiary of the covenant believes my hen-keeping "to be prejudicial to health" then they are free to enforce the covenant, rather than having to seek action via the various public health acts.  There is a clear advantage (to the beneficiary) of being in this position.

As such, my original statement (if I've recalled the covenant correctly) stands.  A restriction on keeping hens exists - albeit with limited enforceability - and remains just as valid as it was when the houses were first sold.  The passage of time alone has not made it less valid (or necessary).

Woolsery

I don't know if youre right or wrong, Section 62, but it seems to me that if such vagueness about enforceability is possible, it leaves members of the public in a position of uncertainty, which as I've already pointed out, isn't the best situation.