how to enforce agreement with neighbour

how to enforce agreement with neighbour

Postby jonnyp1 » Sat Feb 06, 2016 11:30 am

hello,
My property and my new neighbours are divided by a public footpath with hedges on each side. I have an historic right of way over his land which he wants me to give up. I have and probably never will use it but want him when he replaces the hedges to keep them low as i have a view across to the river.
My concerns are that if i give up my right of way i need to be very sure that a/ the agreed boundary height is enforceable and b/ that if there is new ownership it is still enforceable in perpetuity.

So at the moment we have an agreed hedge height and what the lawyers have added is a right for us to enter their property to reduce it to the height and send bill to them if it grows above height, My concerns are that hedges grow if it goes above the height and i go in and get it cut back to the height, within days it is over the height again so maximum in affect becomes a minimum? What happens if despite the agreement they refuse me access to the property to cut the hedge what is my recourse? does anyone know a mechanism that could be part of the contract that would be better to ensure maximum height isnt breached?
so far we have a positive covenant, that i believe won’t apply if they sell the property so the solicitor suggests a Restriction entered in their legal title stating that the property won’t be sold without a covenant being entered into by the new owners with you to observe and perform the same covenant. How good is this a solution?

any help advice i would be very grateful
thanks jon
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Re: how to enforce agreement with neighbour

Postby arborlad » Sat Feb 06, 2016 12:53 pm

Have a read of this thread: viewtopic.php?f=7&t=19765
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Re: how to enforce agreement with neighbour

Postby MacadamB53 » Sat Feb 06, 2016 12:55 pm

Hi Jon,

How good is this a solution?

it is THE solution.

Kind regards, Mac
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Re: how to enforce agreement with neighbour

Postby jonnyp1 » Sat Feb 06, 2016 2:51 pm

thanks for responses mac dont really understand, arbolad very useful, do you have an idea of how i should draft ti to make sure not in situation of the link.
regards jon
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Re: how to enforce agreement with neighbour

Postby arborlad » Sat Feb 06, 2016 3:40 pm

jonnyp1 wrote:........ i have a view across to the river.



The only way to be certain of retaining this view is to own everything contained within that view - if that is remotely feasible it might be worth pursuing, otherwise.........
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Re: how to enforce agreement with neighbour

Postby MacadamB53 » Sat Feb 06, 2016 4:19 pm

Hi Jon,

you've been correctly advised that a positive covenant would be difficult to enforce once the original party sells unless the buyer agrees to a new covenant - and adding a restriction on the register will prevent a sale without this happening.

if you're asking the broader question about how to protect the view of the river enjoyed from your property - it's as arborlad says (unless you own all the land between you ain't got much hope).

Kind regards, Mac
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Re: how to enforce agreement with neighbour

Postby jonnyp1 » Sat Feb 06, 2016 4:48 pm

thanks mac, is there another mechanism rather than positive covenant, negative covenant? is there anyway that they agree to keep the height in a set area of their garden and if they break it our right of way is reinstated, at the moment we give it up once and for all and it seems that your suggesting no agreement can guarantee our view?
or would it be better to keep our right of way, and have an informal agreement that he wont build/grow in our view and we wont use our right of way?
jon
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Re: how to enforce agreement with neighbour

Postby ukmicky » Sat Feb 06, 2016 7:09 pm

He wants you to give it up for a reason. If he has told you why he wants you to give it up don't think what he has told you is the real reason.

A ROW will in general increase the value of a property and devalue another. As your property will be worth more with the ROW and therefore be more desirable, why give it up.

You can prevent him or any future owner of his property building on the land and blocking the views by him agreeing to a restrictive covenant but you cant stop future owners of his property growing the hedges.

A positive covenant is governed by the law of contract which is only enforceable against those who have entered into the agreement . Also as a positive covenant is governed by the law of contract, for it to be enforceable against him there must be some form of consideration that comes your way.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: how to enforce agreement with neighbour

Postby jonnyp1 » Sat Feb 06, 2016 7:42 pm

its not actually worth that much to me, to use it i have to go up a short private road, 100m up a road down another road across his land and round to the bottom of his land that is not opposite my land anyway, he im sure knows it increases his value but he has young children and doesnt want people having right to tramp through his garden.but if there is no mechanism legally to ensure that he will keep the bottom of his garden below a certain height then there is no benefit to me in an agreement
cheers
jon
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Re: how to enforce agreement with neighbour

Postby MacadamB53 » Sun Feb 07, 2016 1:23 am

found on another thread (viewtopic.php?f=7&t=19765):
jonnyp1 wrote:I am currently negotiating an agreement similar to this with my neighbour, I posted a new post today on this and someone kindly pointed me to this useful thread.
in essence i give up a right of way over his land, he agrees to keep height of fences/hedges/shrubs in my line of site to give me a view below x ms, if you were drawing up an agreement now how would it be drafted to secure a maximum height, make him comply without going to court, and be binding not just on him but also any new owners.
any other advice most appreciated
Roblewis wrote:You will need to make an explicit statement to the effect that the agreement will be voided should the hedge not be maintained as per the agreement. The RoW will thus be reinstated across his land
Collaborate wrote:It would have to be written in to the deeds of both properties that there is a covenant that the boundary will be below a certain height. Not sure whether it's a restrictive covenant or positive covenant. Restrictive would be not to build a boundary feature above a certain height (might want to go further and say feature within x metres of the boundary). As for trimming and hedges, that might possibly be a positive covenant as it imposes an obligation on the land owner to trim something. Speak to your solicitor about how this can be phrased so as to be a negative covenant (that binds future owners) rather than a positive one (that doesn't).
jonnyp1 wrote:thanks that seems clearer dont know a good solicitor do you i dont have much faith in mine?
best stick to one thread Jon
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Re: how to enforce agreement with neighbour

Postby MacadamB53 » Sun Feb 07, 2016 1:45 am

Hi Jon,

if I was a friend of your neighbour I'd urge him to write this off as a bad idea (it is a bad idea) and accept that he'd bought a property burdened with a ROW, pointing out to him that it seems the dominant owner has no use for it and that if he bought it with the ROW someone else probably will - not so with what is being discussed on here (who'd want to buy a property which would be burdened with a ROW if the hedge wasn't trimmed often enough).

but that would mean you don't get the nice vista (sorry).

Kind regards, Mac
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