restrictive covenants and fences

restrictive covenants and fences

Postby SarahSue » Sat Apr 09, 2016 7:02 pm

I discovered that I have a restrictive covenant that bans me from erecting fencing between my terraced house and the house next door. We have had issues with a neighbour and currently his bins are lined up in such a way that we face three bins each time we leave our house. We are anxious to screen this off.

The wording on the covenant is: "It being the intention that the Estate shall be an open plan development, no fence or wall or hedge of any description shall be permitted to exist in advance of the front elevation of the building other than a screen fence erected in accordance with the planning requirements".

My first point is that other neighbours have breached covenant by putting up hedges (but not fences) but we have no wish to be sued by said neighbour for breach of covenant.

Secondly, what is the definition of screen fencing? Could this be trellis? We would need screening of 4 foot high and taking in the width of at least three wheelie bins. It is not as straightforward to cover with foliage since part of that area is concreted over and part runs into the garden. A one panel fence or trellis would have been ideal.

I would very much appreciate any advice or thoughts on this.
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Re: restrictive covenants and fences

Postby span » Sun Apr 10, 2016 3:06 pm

More info needed pls. Who are the original parties to that covenant?
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Re: restrictive covenants and fences

Postby arborlad » Sun Apr 10, 2016 3:25 pm

span wrote:More info needed pls. Who are the original parties to that covenant?



viewtopic.php?f=4&t=20281
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Re: restrictive covenants and fences

Postby span » Sun Apr 10, 2016 5:40 pm

arborlad wrote:
span wrote:More info needed pls. Who are the original parties to that covenant?



viewtopic.php?f=4&t=20281


Oh good grief. Another multi-thread postings all about the same problem.

I hate those. Hate. Hate. Hate.

I'm away for some beer to cheer myself up.
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Re: restrictive covenants and fences

Postby SarahSue » Sun Apr 10, 2016 8:47 pm

When I posted the original thread I had no idea about the restrictive covenant not allowing fencing. I then saw the actual document in detail and realised about the restrictions. So not exactly multi posting and not the same problem at all.

If you care to look back, the original thread was about some confusion about boundaries. Now there is no such confusion but I just wanted advice on screen fencing. That is all. But thank you anyway for your comments :( :evil: :(
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Re: restrictive covenants and fences

Postby arborlad » Mon Apr 11, 2016 7:17 am

sorra wrote: So not exactly multi posting and not the same problem at all.




Most of the problems that appear on this site will have many facets, lots of twists and turns, they almost always benefit from being under the umbrella of one thread.
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Re: restrictive covenants and fences

Postby despair » Mon Apr 11, 2016 8:37 am

Sorra

Restrictive covenants often only apply to first purchasers and not subsequent owners
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Re: restrictive covenants and fences

Postby Collaborate » Mon Apr 11, 2016 9:01 am

despair wrote:Sorra

Restrictive covenants often only apply to first purchasers and not subsequent owners


That's not right. Restrictive covenants bind the land. It's positive covenants that only bind the first owner, though there is a work-around that involves whoever they sell it to giving the seller an indemnity in respect of any breach of the covenant.
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Re: restrictive covenants and fences

Postby snyggapa » Wed Apr 13, 2016 10:39 pm

short answer - just do it

longer answer - the covenant is between you (or previous owners if you were not the original purchaser and have not taken on responsibility) and the original seller. your neighbour cannot sue you unless they were the original seller (estate owner) - and if they could, only for the loss that they have incurred.

there are a lot of much longer answers that involve finding out what were the "planning requirements for screen fencing" were at the time, but probably a waste of everyone's time. Just do as others have an put up a hedge or screen. worst case is you get a letter from the original developer /estate owner asking you to take it down. How likely is that, considering others have done the same
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Re: restrictive covenants and fences

Postby Collaborate » Thu Apr 14, 2016 7:30 am

snyggapa wrote:short answer - just do it

longer answer - the covenant is between you (or previous owners if you were not the original purchaser and have not taken on responsibility) and the original seller. your neighbour cannot sue you unless they were the original seller (estate owner) - and if they could, only for the loss that they have incurred.

there are a lot of much longer answers that involve finding out what were the "planning requirements for screen fencing" were at the time, but probably a waste of everyone's time. Just do as others have an put up a hedge or screen. worst case is you get a letter from the original developer /estate owner asking you to take it down. How likely is that, considering others have done the same


Again I'm afraid this is incorrect.

Restrictive covenants will always bind one parcel of land and benefit another parcel of land.

They do not bind individuals personally, but individuals as landowners.

Therefore the benefit of the covenant will pass to new owners of (lets call it) the dominant land, and the burden will pass to the new owners of the servient land.

Whether the neighbours are aware of the covenants, and whether they remain enforceable, are a different matter. Much depends on the wording of the covenant and whether other properties on the estate have breached the covenants. The wording as posted in the original post on this thread is incomplete. This means that either sorra hasn't posted the full wording, or the RC is unenforceable for its failure to state who has the benefit of the covenant and who has the burden.
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Re: restrictive covenants and fences

Postby SarahSue » Thu Apr 14, 2016 10:33 am

Thank you all for your responses.

No other neighbours have put up fences between the properties although there is the odd hedge. It is mostly open plan (as was the intention presumably).

Due to bad feeling with the neighbour, we don't want to risk breaking a covenant, having them sue and then have to take it down, incurring financial loss. But clearly a fence would be ideal.

We need to come up with some way to screen three wheelie bins sited alongside each other and on the boundary. After much thought - and obviously wanting something that won't be viewed as permanent but does the job of screening said bins - I have come up with the idea of trellis planters. I can site two alongside each other though to do that would require a bit of work putting a paving on part of the garden (doable) to level the ground. The area is part hard ground and part garden but mostly hard ground. Of course my question now is am I safe to do that without breaking said covenant? I would also add that during the last storm, because their bins were not put against a garage, they pushed against a hanging basket tree I had, overturning it and causing pots to smash. So clearly we need something there, a least to protect our property. The last thing I want is said nasty neighbour to find some legitimate objection and be forced to take the planters away. Said planters wouldn't be fixed and I think would look like quite an attractive feature.
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Re: restrictive covenants and fences

Postby Collaborate » Thu Apr 14, 2016 11:39 am

that is premature. Until you have identified who the RC is in favour of (is it the developer, or is it your adjacent landowners) you don't know whether your neighbour can actually object to a fence. If what you quoted in your first post on this thread is the entirety of the RC, then it seems to me that it is unenforceable.
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Re: restrictive covenants and fences

Postby SarahSue » Thu Apr 14, 2016 12:22 pm

I shall quote the first part of the document to clarify this: "The transferee so as to bind the land hereby transferred into whosoever hands the same may come and so that this covenant may be for the benefit and protection of each and every part of the Estate hereby covenants with the Transferor that the Transferee and those deriving title under his will at all times hereafter observe and perform the restrictions and stipulations contained in the Second Schedule hereto so that the Transferee shall not be liable for a breach of this covenant occurring on or in respect of the land hereby transferred or any part thereof after he has parted with all interest therein."
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Re: restrictive covenants and fences

Postby Collaborate » Thu Apr 14, 2016 12:40 pm

Assuming there is, in the document, a definition of "the Estate", then it is enforceable by your neighbours. However heed Pilman's post on your other thread (a classic example of why having 2 threads on the same subject is a bad idea).
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Re: restrictive covenants and fences

Postby arborlad » Thu Apr 14, 2016 12:44 pm

sorra wrote:I shall quote the first part of the document to clarify this: "The transferee so as to bind the land hereby transferred into whosoever hands the same may come and so that this covenant may be for the benefit and protection of each and every part of the Estate hereby covenants with the Transferor that the Transferee and those deriving title under his will at all times hereafter observe and perform the restrictions and stipulations contained in the Second Schedule hereto so that the Transferee shall not be liable for a breach of this covenant occurring on or in respect of the land hereby transferred or any part thereof after he has parted with all interest therein."



sorra - Conveyancer and Pilman are both skilled and experienced in interpreting documents like the above, they have both contributed to your original thread.........there is a distinct possibility they will be unaware of this thread - do yourself and the Forum a favour and stick to the one original thread!!

viewtopic.php?f=4&t=20281
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