Restrictive Covenants

Bookworm105

covenants are typically put in place by the original developer of the property and relate to their idea of what makes the place look "nice" so they can sell them. In respect of fences, it's to ensure plots are expressly delineated (cheaply!) so people can see what they are buying when viewing. 

I assume "the property is not 30y/o" is a typo and should say is now 30y/o in which case, as ever, the key to covenants is who is still around to enforce them????

In my road one covenant expressly forbids caravans in the front. Of 15 houses, four now have extended driveways to store caravans on. The developer, in whose name the covenant applies, some 40 years after they built is now untraceable and given it traded under a person's name, rather than a company name, the builder is likely dead. There is no evidence that trading name still exists as various people have enquired over the years as properties are sold on. Residents in our street therefore utterly ignore all the covenants and none of us have retained the original 3 foot high chain link fences 😀

get your solicitor to expressly comment in writing to you on who has the ability to enforce whatever covenants are applicable in your case. Then take a view yourself as to how likely that is to ever happen - given what you have seen in reality on the ground, I'd be confident you can ignore comments about fences. 

PRDMKT

Section62 said:

PRDMKT said:

3ft Wire fence in the rear garden must be maintained and not replaced, currently breached- this one particularly annoys me as it would severely compromise the privacy of the property
1ft Chain-link fence in the front garden must be maintained and not replaced, currently breached.
No plants, trees or shrubs taller than 2ft in the front garden
Not to change the external of the property
etc...

Have you checked these aren't linked to planning restrictions?  They are typical of 'open plan' development, which the council might be able to enforce through the planning process in addition to any enforcement the developer (and/or others) may be able to do via covenants.

It is easy for folks to say "nobody will enforce them after 30 years", but proving it is something altogether different.

As user1977 alludes to, the simple solution is to alter the property to remedy the breaches.  That way when you sell there won't be a problem with extant breaches.  But the situation would remain that a prospective buyer might be put off by the restrictions on what they can do with the garden in future.

That's my issue, to remedy the breaches would ruin the property, the current fence is 1.8m around the rear garden, I would want to increase this to 2.0m (max permitted development) however, the covenant is stating it should be a 3ft high wire fence... this would be horrible. 

It's an old bungalow I am seeking to modernise and renovate, however, the current covenants are going to leave it stuck in the 90's.

user1977

PRDMKT said:

Section62 said:

PRDMKT said:

3ft Wire fence in the rear garden must be maintained and not replaced, currently breached- this one particularly annoys me as it would severely compromise the privacy of the property
1ft Chain-link fence in the front garden must be maintained and not replaced, currently breached.
No plants, trees or shrubs taller than 2ft in the front garden
Not to change the external of the property
etc...

Have you checked these aren't linked to planning restrictions?  They are typical of 'open plan' development, which the council might be able to enforce through the planning process in addition to any enforcement the developer (and/or others) may be able to do via covenants.

It is easy for folks to say "nobody will enforce them after 30 years", but proving it is something altogether different.

As user1977 alludes to, the simple solution is to alter the property to remedy the breaches.  That way when you sell there won't be a problem with extant breaches.  But the situation would remain that a prospective buyer might be put off by the restrictions on what they can do with the garden in future.

That's my issue, to remedy the breaches would ruin the property, the current fence is 1.8m around the rear garden, I would want to increase this to 2.0m (max permitted development) however, the covenant is stating it should be a 3ft high wire fence... this would be horrible. 

If you've quoted the clause verbatim, it doesn't say you can't have something in addition to the wire fence....

RHemmings

Everything I would have said is already said, very well, upthread. 

Question: who is the developer? It's a regional developer then saying the name of the developer shouldn't, I think, be an issue. 

As others have said, the biggest risk is that your ongoing buyer will be as concerned as you are, and this may put them off. Can you ask the current seller if they will provide restrictive covenant indemnity insurance? If they agree to do this, then no cost to you and this may help allay concerns of any future buyers. 

ss2020jd

RHemmings said:

Everything I would have said is already said, very well, upthread. 

Question: who is the developer? It's a regional developer then saying the name of the developer shouldn't, I think, be an issue. 

As others have said, the biggest risk is that your ongoing buyer will be as concerned as you are, and this may put them off. Can you ask the current seller if they will provide restrictive covenant indemnity insurance? If they agree to do this, then no cost to you and this may help allay concerns of any future buyers. 

This was an option that my solicitor advised the buyers might request when I recently sold my mum’s house as Power of Attorney. 

Some of the covenants went back to the 80s and included things like the height of washing lines, fences, not using the garage for anything other than storing a car (it was full of junk!). In the end the buyers took a view that it was not an issue to them but if it took an indemnity policy arranged by the solicitor in order to sell it I would have agreed to it.

From the policies I briefly looked at it covers future buyers as well and is might be easier and quicker than trying to get a developer to agree to change the covenants . 

Section62

ss2020jd said:

RHemmings said:

Everything I would have said is already said, very well, upthread. 

Question: who is the developer? It's a regional developer then saying the name of the developer shouldn't, I think, be an issue. 

As others have said, the biggest risk is that your ongoing buyer will be as concerned as you are, and this may put them off. Can you ask the current seller if they will provide restrictive covenant indemnity insurance? If they agree to do this, then no cost to you and this may help allay concerns of any future buyers. 

This was an option that my solicitor advised the buyers might request when I recently sold my mum’s house as Power of Attorney. 

Some of the covenants went back to the 80s and included things like the height of washing lines, fences, not using the garage for anything other than storing a car (it was full of junk!). In the end the buyers took a view that it was not an issue to them but if it took an indemnity policy arranged by the solicitor in order to sell it I would have agreed to it.

From the policies I briefly looked at it covers future buyers as well and is might be easier and quicker than trying to get a developer to agree to change the covenants . 

The problem with indemnity policies is they can't stop enforcement, so if it is something like fence height and having a low fence is a problem for security/privacy then the policy doesn't help much.

It just comes down to risk whether the covenant ever gets enforced.

GrannyKate

Estate on which I live (almost all bungalows) has a restriction on fencing front gardens.  It is some 50 years old and no-one has put a solid wall or fence up but many are completely enclosed by shrubs trees and hedges and nobody seems bothered about this.  My front boundary is quite long and I have a wide gravelled bed planted out with shrubs and small trees (regularly pruned).  Over the 25 years I have been here they have grown to make an informal hedge of mixed colours and types.  Nothing over 2 ft in front garden seems very restrictive.