Enforcing Restrictive Covenants

lovelldr

Hi guys.

Was wondering if anyone here could help us out on something.

We've been in our current property now, for about 1.5 years, and in one sense, have hated most of the last year. With neighbours from hell trying to cause our life a misery, and other things.

Anyway, my partner is French, and so I decided that for Christmas, I would get her a satellite receiver to receive the french channels, and opted for a motorised system so that I could hve a play and get other sats too.

Anyway, I checked with the council, and could have up to 1m without breaking planning permission. So, I though great, the 85cm one I was looking at is no problem. Ordered it all, got someone in to put the dish up, and at the end of the day, working fine. This was just before Christmas, and was going france for Christmas with the in-laws.

Got home, sat still working great. Back to work, no problems. Got home on end of the week, and receive a letter from royal mail regarding recorded delivery sent to builders twice, which we've not heard from them, in regard to doing work. Think "great, at least it proves they did receive it". Open other letter. It's from the builders! Finally, they've replied to our letter asking them to do the work.

NO! It's a letter informing us, that they've been informed (by our lovely neighbours no doubt), that we have satellite receiving equipment, and by what they understand, it is bigger than the 2'6" (by a measly 9cm) that the restrictive covenants allow us to have, with a copy of the covenants.

Anyway, to cut the story short, I was wondering where we stand with the builders trying to enforce this? All of the properties have finally been sold, so they wouldn't want to enforce it on that matter. There's also the matter of commercial vehicles being parked, which they're not looking to enforce, and all the matter of "access" on the private land, where everyone else seems to park! But we're the only ones who seem to have been in receipt of something regarding restrictive covenants.

Anyway, would it be likely that they will try to enforce it? If we just ignore this letter, what action could they take? If the only action they could take is that we HAVE to take it down, could we then just put a 75cm (or thereabouts) dish up, as it did say in the letter about remove or change to fit within requirements. Would we incur any costs throughout this, or would it be all their costs if they try to take us to court (or anything else)?

Having looked around on the net, I found someone in a similar situation asking similar question, and someone replied the following:

As someone who, together with others, tried to enforce a developer's restrictive covenant I can inform you that they are worthless. We won at the Magistrates court but lost at a High Court appeal. The judge indicated that covenants were unreasonable restrictions and dismissed the appeal and, apparently, there is a lot of case law confirming this. If you are referring to the builders/developers covenants they impose them to sell their houses as "prime" products. The "first buyer" reference has no bearing as, if the covenant is in the deeds, it must be transferred on re-sale to subsequent purchasers. If it is a local authority bye-law then that is a different matter and will be enforceable. Have a go, you can, at worst, be subject to some form of "enforcement" order and then decide whether to fight it, or not. Try the CAB for advice.

This would seem to put the ball in our favour.

But was wondering what other people thought. Has anyone else experienced anything similar? What happened? What did you do?

Many thanks all.

David

shane77

Hi David,

After reading your whole story all I can say is to ignore the letter at this point of time and keep your fingers crossed. Wait for a couple of weeks to see if they send you another letter or notice. It all depends on whether the restrictive covenants are the part of your deeds or not. If they are mentioned in your property transfer papers then the builders have the legal right to take you to court and in that scenario you would be the one who has to pay all the court costs etc.

Hope that helps and answers your question to some extent !!

Floosie_2

Hello David,

I work in Planning and the information you found on the net and quoted hit the nail on the head.

Covenants are a selling tool, be brave they are worthless!

silvercar

We have restricitve covenants preventing any aerial, telephone wire, dish etc.

The house was built in 1937 and has all 3, as do other houses in the road.

My solicitor said that the builders, as well as wanting to take action, would have to prove that they lost out (financially) by us breaking the covenants.

lovelldr

Thanks a lot for the info so far guys.

So what would you recommend as the next course of action? Just leave things as they are, and hope the builders don't contact us regarding it again? Although I wouldn't be sure how this would go, as we obviously want the builders to fix the problems we have with the house!

Or would we be best pointing out politely to the builders that the dish is only a little bigger than what they wanted, what is the problem with it, and how do they loose out with it being that tiny bit bigger? Or what else could we do?

Many thanks again guys

BTman

I would get the 75cm dish fitted,


then paint a great big yellow smiley face on it

lovelldr

Thanks for the suggestion BTman. But I think I'd rather paint a big green hand, with the middle finger erected, and the name of the builders underneath

Anyway, having reading around some other sites and on here, I read an interesting message (can't remember where now though), saying that builders were only able to enforce the restrictive covenants when they actually owned a proportion of the land surrounding the property in breach of the covenant. The covenant's are usually put in place, to protective a "mutual agreement" that the covenant will be kept up by all residents.

Is this correct? And if so, would that mean then, that all of the neighbours would have to complain, and try to enforce it?

silvercar

My solicitor explained it in a similar way. Something like, the builders would still have to be in operation and would have to show that they stood to lose out by not enforcing the covenant.

takoo

Hi lovelldr

A pal saw some builders on a neighbouring property intending to build several dwellings - not one as allowed by the restrictive covenant.

He rang them told them about the covenant.

They took down their sales board, packed up and skiddaddled.

Yours sounds like an "estate restrictive covenant" intended to maintain the quality of your estate of houses.

Points to consider:

1. How old is the estate?
2. Have you checked the particular covenant and any other covenants designed to maintain the quality of the estate?
3. Can you quote documentary evidence of the planning policy on the dish etc?
4. Is your dish a standard in the area around the estate (or one the estate itself?
5. Is the quality of the estate maintained regarding this and other covenants?
6. How many breaches of any covenants can you spot?
7. Have any breaches been long term?
8. Do you have insurance for legal costs (which would be valid for any breach you have committed)?
9. Do the answers to the above and the conduct of all of the estate's house / flat owners suggest the covenants are obsolete for modern living or that the estate has been neglected by the builders until now?
10. Are you being victimised?

None of these give you an answer but the drift is there but...?

Takoo