Restrictive Covenant - Garden Wall

Restrictive Covenant - Garden Wall

Postby JenniferB » Wed Feb 27, 2008 12:47 am

I was wondering if somebody would be kind enough to offer me some advice regarding a restrictive covenant I have on my property.

I live in a cul-de-sac in Hull which is largely open plan albeit a number of people in the neighbouring cul-de-sacs have erected iron railing fences around their property boundaries.

As I live on a corner plot and therefore adjacent to quite a busy and fast road, I would like to build a 1m high brick and iron railing wall around the boundary of my property in order to prevent my two young children running onto the road.

My partner and I have submitted a set of plans to the local authority Planning and Building Control departments and have in writing that they have no objections to the plans. As the wall will be on the boundary of the highway, we have also contacted the local authority’s Highways, Street Scene and Property departments all of whom have confirmed verbally that they have no objections.

We have also checked with Land Registry to ensure that the land we propose to erect the wall on is actually our property, which we now have confirmation that it is. This is consistent with the title plan.

In order to maintain good relations, we have also consulted all of our immediate neighbours and discussed our plans with them and they are all supportive.

My only problem now is a covenant, which exists within the deeds which states:

Not without the previous written consent of the transferor (Broseley Estates Limited) will I:

i) Erect any wall or fence or plant or grow any hedge in the area lying between the forward edge or edges of the dwelling house erected on the property at the date hereof and the roads and footpaths abutting the property.

It also states that we must:

ii) Maintain such part of the property as is dotted black on the Plan as a grassed area and/or access way and/or parking space as provided in construction and to keep the same in a neat and tidy condition and comply with the requirements of the local highway and/or any other relevant authority with regard thereto and not to plant any trees, shrubs or plants or construct any building or erection thereon or lay any paving, stones, slabs or anything of a similar description thereon.

Note: Point (ii) refers to a 2m service strip (identified as a dotted black line on the plan), albeit this land is owned by ourselves.

I accept that the two above points are quite clear, however, Broseley Estates went out of business in 1987 after constructing the cul-de-sac in which we live and are therefore no longer able to enforce the covenant. My question is: How can I gain written consent from a company that ceased trading over 20 years ago? Who enforces the covenant now? As stated above, I already have written permission from the local council.

Following discussions with my neighbours, I am informed that Ideal Homes continued to build the rest of the estate when Broseley Estates went out of business; I therefore contacted them to see if they had transferred the rights of the deeds. Ideal Homes confirmed that they do not keep records on properties which are older than 7 years and referred me back to Land Registry.

We can construct the wall in such a way that will allow the utility companies to come on to our land and maintain the services without affecting the wall; the only thing stopping us from constructing the wall now is this issue regarding the covenant in the deeds.

I would appreciate any assistance anybody can offer me on this matter, as I do not know which way to turn and do not want to construct a wall that I have to pull down in a few months.

Please help!!!!

Best regards

Jenny
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Postby Distressed Damsel » Wed Feb 27, 2008 11:19 am

hi, Please read my tale of woe, (posted mostly in 'fences' forum).

Our situation was very similar to your own..except we put up a simple 1 meter fence first, (with the intention of changing it to a matching brick wall at a later date when all covenant agreements had definitely expired).

I strongly recommend obtaining WRITTEN consent from the housebuilder.

If you don't have permissions in writting, it is possible that some crazed individual with too much time on their hands... from 6 streets away... having been previously upset by having their own planning application turned down...may take it upon themselves to enforce your breach of covenant at their own expense, even if the housebuilders do not.

A very knowledgeable member of Gardenlaw, (username Conveyancer), may be able to assist you with this matter. He will probably need to see the exact wording used to introduce the covenant on your deeds...as this determines whether or not the covenant is actually still enforceable by the housebuilder, or any other individual, at this point in time.

All the best, Distressed Damsel
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Postby jammy » Wed Feb 27, 2008 1:41 pm

As far as I was aware, the covenant could only be enforced by the original housebuilder or, remotely, someone who benefits from it.
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Postby hzatph » Wed Feb 27, 2008 3:40 pm

It is probably as jammy describes but if you are worried take the covenant to a solicitor and ask them. If it is only the builders and they don't exist then nobody can use the covenant to stop you.
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Postby kentishbob » Mon Mar 03, 2008 11:06 am

Distressed Damsel wrote:hi, Please read my tale of woe, (posted mostly in 'fences' forum).

Our situation was very similar to your own..except we put up a simple 1 meter fence first, (with the intention of changing it to a matching brick wall at a later date when all covenant agreements had definitely expired).

I strongly recommend obtaining WRITTEN consent from the housebuilder.

If you don't have permissions in writting, it is possible that some crazed individual with too much time on their hands... from 6 streets away... having been previously upset by having their own planning application turned down...may take it upon themselves to enforce your breach of covenant at their own expense, even if the housebuilders do not.

A very knowledgeable member of Gardenlaw, (username Conveyancer), may be able to assist you with this matter. He will probably need to see the exact wording used to introduce the covenant on your deeds...as this determines whether or not the covenant is actually still enforceable by the housebuilder, or any other individual, at this point in time.

All the best, Distressed Damsel

I'm a bit confused here, why would someone from 6 streets away want (or be able) to enforce a covenant?
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Re: Restrictive Covenant - Garden Wall

Postby dianesawdon » Thu Jan 28, 2010 10:27 am

[quote="JenniferB"]I was wondering if somebody would be kind enough to offer me some advice regarding a restrictive covenant I have on my property.

I live in a cul-de-sac in Hull which is largely open plan albeit a number of people in the neighbouring cul-de-sacs have erected iron railing fences around their property boundaries.

As I live on a corner plot and therefore adjacent to quite a busy and fast road, I would like to build a 1m high brick and iron railing wall around the boundary of my property in order to prevent my two young children running onto the road.

My partner and I have submitted a set of plans to the local authority Planning and Building Control departments and have in writing that they have no objections to the plans. As the wall will be on the boundary of the highway, we have also contacted the local authority’s Highways, Street Scene and Property departments all of whom have confirmed verbally that they have no objections.

We have also checked with Land Registry to ensure that the land we propose to erect the wall on is actually our property, which we now have confirmation that it is. This is consistent with the title plan.

In order to maintain good relations, we have also consulted all of our immediate neighbours and discussed our plans with them and they are all supportive.

My only problem now is a covenant, which exists within the deeds which states:

Not without the previous written consent of the transferor (Broseley Estates Limited) will I:

i) Erect any wall or fence or plant or grow any hedge in the area lying between the forward edge or edges of the dwelling house erected on the property at the date hereof and the roads and footpaths abutting the property.

It also states that we must:

ii) Maintain such part of the property as is dotted black on the Plan as a grassed area and/or access way and/or parking space as provided in construction and to keep the same in a neat and tidy condition and comply with the requirements of the local highway and/or any other relevant authority with regard thereto and not to plant any trees, shrubs or plants or construct any building or erection thereon or lay any paving, stones, slabs or anything of a similar description thereon.

Note: Point (ii) refers to a 2m service strip (identified as a dotted black line on the plan), albeit this land is owned by ourselves.

I accept that the two above points are quite clear, however, Broseley Estates went out of business in 1987 after constructing the cul-de-sac in which we live and are therefore no longer able to enforce the covenant. My question is: How can I gain written consent from a company that ceased trading over 20 years ago? Who enforces the covenant now? As stated above, I already have written permission from the local council.

Following discussions with my neighbours, I am informed that Ideal Homes continued to build the rest of the estate when Broseley Estates went out of business; I therefore contacted them to see if they had transferred the rights of the deeds. Ideal Homes confirmed that they do not keep records on properties which are older than 7 years and referred me back to Land Registry.

We can construct the wall in such a way that will allow the utility companies to come on to our land and maintain the services without affecting the wall; the only thing stopping us from constructing the wall now is this issue regarding the covenant in the deeds.

I would appreciate any assistance anybody can offer me on this matter, as I do not know which way to turn and do not want to construct a wall that I have to pull down in a few months.

Please help!!!!

Best regards

Jenny[/quote


Hi,
did you ever resolve this problem as i am in the same situation now i want to erect a 1m railing to the front of my property and have te same covenant as you with broseley estates who as you say ceased trading over 20 years ago. plenty of other people have erected fences and hedges. thanks Diane
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Postby ukmicky » Fri Jan 29, 2010 12:56 am

If your estate was registered as a building scheme there is the possibility that your neighbours have the right to make you abide by the wording on the covenant.

Covenants are very complex and can require specialist help and even then there is no guarantee that a court will come to the same conclusion as your legal team.

The company has now gone bust so you may wish to test the waters by building something small which can be increased in future.

If others with the same covenant have built walls etc and no one has come after them a court would not probably want to know if someone tried to sue you for breaching the same covenant if they have failed to take action in the past the prevent the others.

Your decision
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Postby Alan Harris » Tue Feb 02, 2010 12:07 am

Jenniferb

The establishment of open plan covenants was a fad which at one time builders saw as enhancing the appearance of the amount of common land accessible to house owners and was reputed to increase saleability. Planners shared this view and presumably more readily recommended plans for approval.

Such provisions are less favoured these days.

If this is an old arrangement it is probable that no-one is able to benefit from the covenant and you may overcome it with impunity. If the covenant is recent then you may need to find out why it was applied. Try the planners and find out the date when the covenant came into existence.

please let us know what you find out.

best regards



Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
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Re: Restrictive Covenant - Garden Wall BROSELEY HOMES/ estat

Postby buyingahouse » Mon Dec 01, 2014 10:31 pm

Hi, I bought a house recently which was built by Broseley Homes in the north east. I came on this site regarding the restrictive covenant preventing a fence or hedge at the front of the property. I noticed all the comments about similar covenants from this builder, who is defunct. I wanted you to know that I traced Broseley Homes / Estates via the companies house website to Persimmon Homes Limited, to whom I requested the covenant be lifted. They agreed by return of post and were extremely obliging. I will still run it past the council, even though my plan is to erect a small ( less than 2 metre fence) and I hope my new neighbours will be fine with it. The point is, it can be done. I sent a copy of the title deed, a copy of the covenant and described what I proposed in a few sentences and why I needed it.

Good luck all and let me know if you need any further information!
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Re: Restrictive Covenant - Garden Wall

Postby jonahinoz » Sat Jan 10, 2015 8:57 am

Hi,

Somebody living six streets away may have fallen foul of a covenant, or a planning decision,
or anything ... and just wants to share his misery.

OT ... friends bought a new house, with similar no-fence covenant. Their front lawn reached to the edge of the carriageway - there was no footpath. So they dug up a narrow strip, and planted some roses. Letter recieved from the council to say there was a public ROW along the edge of their garden, and put the grass back. Seems somebody was a bit remiss.

Is it likely that these no-fence covenants are written in at the request, or hint, of the Planners?

I recently heard the phrase "Defendible front area" i reference to a front fence.

John W
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Re: Restrictive Covenant - Garden Wall

Postby jonahinoz » Sat Jan 10, 2015 9:02 am

Hi again,

Google DEFENSIBLE SPACE.

John W
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Re: Restrictive Covenant - Garden Wall

Postby mugwump » Sat Jan 10, 2015 9:22 am

jonahinoz wrote:Hi,

Somebody living six streets away may have fallen foul of a covenant, or a planning decision,
or anything ... and just wants to share his misery.

OT ... friends bought a new house, with similar no-fence covenant. Their front lawn reached to the edge of the carriageway - there was no footpath. So they dug up a narrow strip, and planted some roses. Letter recieved from the council to say there was a public ROW along the edge of their garden, and put the grass back. Seems somebody was a bit remiss.

Is it likely that these no-fence covenants are written in at the request, or hint, of the Planners?

I recently heard the phrase "Defendible front area" i reference to a front fence.

John W
Were the council able to prove that there was a ROW apart from stating it in the letter? I assume that there was nothing in the house deeds.

It's one thing claiming but another thing actually being able to prove.
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Re: Restrictive Covenant - Garden Wall

Postby Alan Harris » Sat Jan 10, 2015 2:25 pm

Dear All

Rights of way are easements with duties to allow persons and or vehicles to pass or repass land which they do not own. The easement or other rights of third parties are are set out on the freehold deed or in a lease held by an occupier/leasholder associated with the property. So if the ROW is not mentioned in the deeds or any leases held by occupants of the land then a ROW does not exist. In the case of long established ROW which predated the development then it should have been incorporated in the deeds of each property. So if the ROW is not included in the deeds then it almost certainly does not exist.

Land registry may be able to clarify the situation if you do not have the deeds to hand!

best regards


Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
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