Fencing and other positive covenants

Fencing and other positive covenants

Postby Conveyancer » Wed Oct 05, 2005 12:26 am

A covenant is an agreement made by deed.

“the covenantor” is the person who gives the covenant and “the covenantee” is the person who takes the benefit of the covenant. (I use them below to mean the original parties to the deed only.)

There are two types of covenant: restrictive and positive.

Restrictive covenants are negative in nature. You can comply with a restrictive covenant simply by doing nothing. Examples of restrictive covenants are.

Not to use the property for business purposes

Not to keep poultry

Not to build any outhouses


A covenant can be restrictive even if phrased positively, e.g.

To use the dwellinghouse for residential purposes only is equivalent to Not to use the dwellinghouse otherwise than for residential purposes

A positive covenant requires the covenantor to do something and will usually involve expenditure. The most usually encountered positive covenants relate to the construction and/or maintenance of boundary features. A covenant can be positive if phrased negatively e.g.

Not to allow the fence to fall into disrepair is equivalent to To keep the fence in repair

All covenants are enforceable by the covenantee against the covenantor – even after the covenantor has disposed of the land - the only exception is where the deed provides that the covenantor is not to be liable for any breach after he has disposed of the land.

After that it gets complicated. The question of whether a restrictive covenant is enforceable against a successor to the covenantor is so involved that it would be impossible to explain it briefly and very difficult to explain it at length.

The enforceability of positive covenants is more straightforward, but the following should nevertheless be treated as an outline only.

If A covenants with B to maintain a fence then the obligation can be enforced by B even if A moves on.

If A sells to C and C fails to maintain the fence B cannot sue C. He can however sue A. A, if he was properly represented when he sold the property, will have taken an indemnity covenant from C. Therefore, if A is sued by B, A can join C in the action. This is the theory. Of course the more time passes the more chance there is that A will be untraceable or have gone to the great garden in the sky where there are no NFH’s, who will all return to whence they came. The chain of indemnity can be quite long when C sells to D who sells to E and so on. It is not unusual for the chain of indemnity to be broken. For all practical purposes, particularly in relation to the average residential property, when the covenantor moves on the covenant becomes unenforceable.

If B sells to X before A moves on then the benefit of the covenant will usually pass to X.
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Postby Angelisle » Wed Oct 05, 2005 8:26 am

Thank you for this Conveyancer,
it has given greater clarity to a complex subject and should be very useful to many Garden Law members. :)
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Postby nigelrb » Thu Oct 06, 2005 8:39 pm

Hi y'all.

greater clarity? You've got to be joking :roll: I was going really great until:
Therefore, if A is sued by B, A can join C in the action.
By the time I got to 'E' and 'X' I was just busting to go and open a can of 'alphabet soup!'

The next property I buy will have included the covenant that I bear total responsibility for all boundaries - without question!

Thanks conveyancer. I've now got a sheet of A3 paper out with little plots drawn over it with A, B,C etc. Hope you have a good night while I'm trying to fathom this all out.

shame I've had to recall an old schoolteacher saying that I'm not too bright :lol: :lol:
Cheers, Nigel
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Postby twig » Thu Oct 06, 2005 11:00 pm

Lol ok, this one had me reaching for my deeds for an example.

My Deeds read:

The transferee hereby covenants with the transferors as follows:-

1) not to erect aerials on the roof or outside of the property transferred.

2) to forever maintain the walls marked "T" on the said plan 1.

3) to pay one sixth cost of:-

a) The repair and maintenance of the drive hatched yellow on the plan and not to obstruct or leave vehicles thereon so as to cause an obstruction and

b) maintaining and renewing the pipes sewers drains and pumping station servicing the property transferred and including the cost to the transferors of the electricity consumed to run the pumping station.

I am not the transferee, the previous owner is.

So, am I right in thinking that I cannot erect an external aerial, I don't have to maintain the wall but my predecessor might have to (if found), I can't obstruct the drive but I don't have to pay for the maintenance (no conditions contained in the ROW) and I don't have to pay anything towards the pump and sewers?

This is all theoretical of course, I've always been happy to pay my bit. It seems fair.
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Postby Conveyancer » Fri Oct 07, 2005 12:07 am

So, am I right in thinking that I cannot erect an external aerial,

The covenant may not be enforceable. It depends - please don't ask on what.

I don't have to maintain the wall but my predecessor might have to (if found)

Correct, but there is a possibility of being made liable via the indemnity route.

I can't obstruct the drive

Same as for aerial, except that there is a separate rule that you cannot obstruct anyone's right of way.

but I don't have to pay for the maintenance (no conditions contained in the ROW) and I don't have to pay anything towards the pump and sewers?

Although the exercise of the rights may not be expressed to be subject to payment I suspect (I am not sure) that the rule that you cannot take a benefit without the burden will apply.
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Postby twig » Fri Oct 07, 2005 1:03 am

there is a possibility of being made liable via the indemnity route.


I'm pretty sure I never signed any indemnity covenant. The conveyancer I use is detested by the local estate agents for being "over-efficient" and holding up or even losing sales. That's why I chose him.

I suspect (I am not sure) that the rule that you cannot take a benefit without the burden will apply.


Probably, but there is also a neg covenant on the neighbour that restricts them to putting no more than 2 properties on the pump. They are now trying to put a third one on so if I do decide to not pay I won't be feeling guilty....,
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Postby Maverick.uk » Fri Oct 07, 2005 4:06 pm

I think in mine it has a statement which says something like successors in title, which i guess passes the covenant to who ever buys.

Cheers

Mav
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Postby red wookie » Fri Oct 07, 2005 6:48 pm

Very concise Convenyancer-Query-
If positive covenant in place to "maintain and keep fences in good repair",and the original covenantee is the first purchaser from the developer(i.e houses not very old)-
WHo can enforce the covenant,against them-NFH??

In our case covenantor removed fence to try and claim our very very much older land behind their fence(and there is a planning drawing referenced and quoted in their deeds that shows the exact and continuous line of their fences in place),not where they have said in court :roll: ...
WHo can enforce???
Curious to see if you have any other ideas other than sue the bastards! :twisted:
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Postby Conveyancer » Fri Oct 07, 2005 11:55 pm

Most people and some lawyers are not aware of the problems associated with the enforcement of positive covenants. So, rather than considering whether the covenant is enforceable just point it out and wait for him to come back and tell you why he thinks it is unenforceable.
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Postby rainbowandyroo » Wed Feb 01, 2006 4:54 pm

Thanks for that it has helped clear things up. What I think we'll do is replace the 3ft chain link on our side and if the fence crumbles and the new neighbours want to replace it that will be their choice, at least my dogs won't be running riot in their garden.Lorraine
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Restrictive Covenants

Postby bertiedog » Mon Jun 26, 2006 2:30 pm

Dear Conveyancer and others, We all have a restrictive Covenant on all our deeds as we are a landlocked site, the gardens all backing onto each other and making a private and beautiful outlook fo us all, for which we had to pay a premium. It restricts anything being done to any building or land or use in any manner that will deteriorate the value of the adjoining land for residential purposes, it also excludes using any building for a factory or manufacture. Well, we have three NFL's who have sold to a builder who thanks to John Prescotts discredited back garden development permission now intends to erect 8 houses in the centre of all our gardens, ruining our privacy value and enjoyment of all the remaining 15 houses. This site involves along with the inadequate parking, a vast site of concrete where there was a sylvan setting of trees and greenery. This amounts to about 76 metres by34 metres of solid concreteplateau which will collect rain and surface waters to flow onto our lower gardens. As a house wilo be knocked down to allow access and it is for all intents and purposes, a business proposition surely this constitutes the "not to use in any manner" as well as being the same really as disruptive to our enjoyment as a factory or manufacturing would be. We are being driven out as the plans are terrible with lowcost housing crammed with their cars and children in atiny space suitable for two or three houses. Unfortunately we have found that ourhouses are now impossible to sell and the agent has told me not to even try until it is all finished and some greenery has grown a bit. All the surrounding properties are blighted the same as the narrow lane is already too small for the cars etc.
I'm sure the intention of the Covenant was for it to remain a quiet semi-rural circle and that is why there was nospace for a road to the centre. I don't think that 100 years ago, they could even imagine a John Prescott or thestress of immigrants in thisarea or that the local Council could be over-ruled. I think the maening was that you couldn't keep pigs or change a house into a shop, or put extra buildings up for profit. But a building site is a business for profit, even a factory wouldn't have such a vast slab of concrete. There is no difference in that use thancramming in more people and cars into the centre than in the whole area surrounding it. This covenant has been added to every transaction to every property involved, witnessed by Solicitors right upto the latest sale 4 tears ago.
I'm told that it is still valid and capable of being enforced, but how much will this cost and has J.P. office the right to ignore or overturn it? Grateful for any similar problems and advice.
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Postby chica » Fri Jul 07, 2006 5:11 pm

This all sounds very complicated. I've had to read it 3/4 times, i'm gonna get my deeds out see what they say see if my hubby can work it out!!

Hey they say you learn something new everything day.

take care everyone

Thank you Conveyancer
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my home is nearly ten years old and we are not allowed fence

Postby loubylou » Wed Apr 04, 2007 4:22 pm

Hi , im, interested in knowing about restrictive covenants and where i stand? as we have already entered into a long drawn out process of a fence encroachment,which if the barking mad man had not erected if he took any notice of the restrictive covenants in place...i feel he as took liberties and caused soooo much anguish and resorted to harrassing my family and me, we,ve had the police out sought solicitors and a surveyour.!!! so PLEASE CLARIFY IF POSS DO THE COVENANTS AND SUCH LIKE APPLY??SURELY THEY DO? AFTER ALL WE WOULD NOT BE IN THIS POSITION IF THE CRAZY FOOL HAD BEEN SO KIND TO HAVE LOOKED INTO IT.p.S i feel he is most definateley a power tripper getting off on the situation TTSSKKK TTSSKK SILLY SOD. ALL ADVICE WELCOME.OH AND HE HAS 15 DAYS LEFT TO REMOVE THE FENCE,WOTS THE LAW AND JURISTICTIONS THEN FOR ME?? Do i then have right to take the fence down???
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Postby chica » Wed Apr 04, 2007 9:44 pm

Hi loubylou, ..... you sound fuming mad. I am not being rude but I think if you start your own thread you get a more rapid response.


I do not totally understand your circumstances so do feel in appropriate to answer.

Hang on in there and i am sure somebody will be along to explain.




Boundary disputes!!!! 4 years still going!!!!!!
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Postby Conveyancer » Thu Jan 17, 2008 4:57 pm

I think this thread is worth revisiting, if only because people may be puzzled why a fencing obligation which looks as if it ought to be binding, is not.

Let's get away from land for a moment.

Suppose Aunt Maud has bought a car for her nephew Tom. Before handing the car over, she extracts a promise from Tom that he will take her shopping every Friday. Tom gives the promise. Clearly Tom is now under an obligation to take Aunt Maud shopping every Friday.

But what if Tom sells the car to Jim? Is Jim obliged to take Aunt Maud shopping? Of course not, you would say; the agreement was between Aunt Maud and Tom. The obligation to take Aunt Maud shopping does not go with the car - it was a purely personal obligation.

Suppose when Tom sold the car to Jim, Jim agreed with Tom that he would take Aunt Maud shopping, what then? Well, that agreement is between Tom and Jim and cannot be enforced by Aunt Maud; lawyers would say that there is no "privity of contract" between Jim and Aunt Maud. What can Aunt Maud do? Well, she can sue Tom and Tom, if he does not want to pay compensation to Aunt Maud, will join Jim in the action.

A third possibility is that when Tom sells the car to Jim he gets Jim to enter into an agreement with Aunt Maud that he will take Aunt Maud shopping. Then there is privity of contract between Aunt Maud and Jim and Aunt Maud will be able to sue Jim if he fails to keep to the agreement. She will also be able to sue Tom, since their original agreement still stands. If Tom wants to be free of the obligation he would have to negotiate a release from Aunt Maud.

(For the record, in some cases the obligation would have to be imposed by deed, but we need not go into that.)

The situation with regard to land is similar - the fact that land is involved is largely irrelevant.

So, if Aunt Maud sells some land to Tom and extracts a covenant that he will erect and maintain a fence between the land and the land that Aunt Maud retains, the covenant is enforceable by Aunt Maud and if the fence falls into disrepair after Tom sells, she can still sue Tom.

If the buyer is Jim and Jim covenants with Tom that he will comply with the covenant then we have the situation that if the fence falls into disrepair Aunt Maud can only sue Tom and if she does, Tom will have to join Jim in the action.

It will rarely be the case that Jim will enter into a direct covenant with Aunt Maud or that Tom will be released.

The above only deals with the question of who the obligation can be enforced against, not who can enforce the obligation and is necessarily not the whole story. However, the rule of thumb is this: if you were not the person who originally entered into the obligation, the obligation probably cannot be enforced against you by your neighbour.
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