Erecting fence and gate with covenant?

tigertrio

I wish to erect a fence and a gate in front of my property.

My house has a covenant:

"Not to erect any walls fences or other structures nor allow any hedge to grow on the property between any building on the property and the estate road except as provided as at the date of this transfer".

The document this relates to does not define an "estate road", but does define an estate: "all the land (except the property) now or formerly comprised in the title number in panel 1.

Just to note, the house is not on an estate, it is a small row of houses on an existing council-owned road.

To give you an overview of the property, it looks like this:


------------------------------------------
Council Road
------\                    /---------------------
Council Pavement with dropped curb
------|                    |---------------------
Strip of verge with cross over points belonging to the developer
\\\\\\\\|                    |\\\\\\\\\\\\\\\\\\\\\\\
-------                     ------------------------
Driveway
----------------------------------------------
House
----------------------------------------------
Back Garden



My questions are:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.
2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

Also note that I am aware that these things are seldom enforced, but I am aware of the developer enforcing something to another house on the street (not for fences).

Section62

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

tigertrio

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

CSI_Yorkshire

tigertrio said:

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

Being a council-owned and adopted road doesn't stop it being an estate road.

The carriageway, pavement and verge (the road) serves the "small row of houses", i.e. it is the road that serves the estate.  A common understanding would, therefore, be that it is the estate road.

user1977

tigertrio said:

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

No, of course you won't. Whether or not it's adopted doesn't affect whether it's the road referred to in the covenant.

tigertrio

user1977 said:

tigertrio said:

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

No, of course you won't. Whether or not it's adopted doesn't affect whether it's the road referred to in the covenant.

Thanks, but the road in question is not part of the estate, and never has been. It's just next to it.

Bradden

It might be worth asking your neighbours if they would mind before doing anything.

user1977

tigertrio said:

user1977 said:

tigertrio said:

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

No, of course you won't. Whether or not it's adopted doesn't affect whether it's the road referred to in the covenant.

Thanks, but the road in question is not part of the estate, and never has been. It's just next to it.

If it's the only road adjacent to the property, I don't see how else it could be interpreted.

CSI_Yorkshire

tigertrio said:

user1977 said:

tigertrio said:

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

No, of course you won't. Whether or not it's adopted doesn't affect whether it's the road referred to in the covenant.

Thanks, but the road in question is not part of the estate, and never has been. It's just next to it.

Does the road serve the estate?  As in, do you use any part of the road (which includes footpaths, verges etc) to access, egress or otherwise benefit the houses of the estate?

I would suggest you do.

It seems, however, that you have already decided your perspective regardless of anyone else's advice.

ProDave

The biggest clue will be have other houses fitted a fence in breach of the covenant and got away with it?  If so then it is likely nobody is enforcing the covenant and you might also get away with it.

If you have seen fences go up, and then a short time later taken down, that would be a big clue the covenants are being enforced.

Section62

tigertrio said:

Section62 said:

tigertrio said:

1. As there is no definition of "estate road" can I consider the covenant to be non-enforceable.

If a term isn't defined then a court would consider the "natural meaning" of the words used in a contract - the lack of a definition of a particular word doesn't (by itself) render void the clause in which the word is used.

Courts would usually understand an "estate road" to be a road which serves or was provided as part of a estate.  A single property can be an "estate".

tigertrio said:

2. I have googled "estate road" which comes back with "Estate Roads means the roads and footpaths within the Estate constructed or to be constructed for use by vehicular and pedestrian traffic and as referred to in the Transfer.", so should this definition be used? If so, seeing as only the verge and cross over points of this verge will be owned by the developer, I presume then that the covenant would not be breached, as they are not used for vehicles or pedestrians. Or would they, as a cross over point is for pedestrians and vehicles? Or would this mean that I could just not put a gate in front of the crossover point?

The meaning of "road" is not just the bit that vehicles drive on, but the whole of the "way" between the boundaries of adjoining properties.  So this includes the carriageway, verges, footways, utility strips and 'roadside waste' etc.

I can't say you wouldn't be successful with your argument in court, but I would doubt a judge would be easily persuaded.

Stepping back a bit, the reason for covenants like this is usually to preserve the appearance of a development, and/or help maintain the safety of road users.  Often the covenant is used to support planning conditions or to maintain visibility/sightlines (and aid enforcement of highway law).  Have you checked for planning conditions?

As you note, people do often say that nobody enforces covenants like this, but that isn't always true. If enforcement is taking place with another property nearby it increases the risk you may not get away with a breach yourself.

Thanks for your detailed response, my argument would be, that there is no estate road, as it's a council road. Think I would get away with it?

Estate roads can include existing public roads, roads intended for adoption, and roads the developer intends to remain unadopted.

I don't think your argument is sufficiently robust that it would be wise to allow this to get anywhere near close to litigation.