Fencing and other positive covenants

Fencing and positive covenants

Postby Alan Harris » Thu Jul 17, 2008 3:43 pm

Dear Conveyancer

Thank you that was very helpful although it does not help with the finer point which I was trying to determine (I didn't explain the point). A boundary which on the face of it is the responsibility of a neighbour to maintain but under a covenant is not going to be enforceable, as a consequence of the great garden in the sky, is the subject of the neighbour to replace it with a lower fence. The proposal would remove a gate pier (partly on our land and partly on the neighbour's) and would result in considerable loss of privacy.

If the responsibility for maintenance of he fence cannot be defined and the fence is correctly along the boundary (not offset) then is the fence a joint responsibility. If that is the case do the two neighbours have to agree what can be done to the fence before it is done. If the gate pier does not have a gate at the moment does the fact that part of it is clearly founde on and lies within our side of the boundary line is that sufficient to prevent the neighbour from taking it down even if it is replaced with something different.

In this case the new neighbour is a lady of senior years who has no interest in changing the fence or gate pier but with a daughter who is a nervous driver desiring a better entrance (which involves changing our presnt satisfactory arrangements). My overview is that the property was as it is a few months ago at the time of purchase so it could have been no surprise to the daughter that vehicle movements would not be as convenient as she would like. There was for a while a presumption by her that she could change things as she wished without consultation or agreement and I hd to speak to the contractor with electrical jack hammer in hand just befor he started on the gate pier.

We may have looked for a compromise if the new owner was worried about the safety of access for herself (she does not drive) but we feel less inclined to put ourselves out from a situation with which we are satisfied to make life easier for a nervous driver who will only visit occassionally.

The property was built in 1949 and the hazzard of leaving or joining the highway has only differed to the extent that there may be more cars travelling the road but that they are nowadays engineered with much better breaking systems than in the past.

My question may be a long one but the answer may well be rather shorter, I suspect.

best regards



Alan Harris
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Postby despair » Thu Jul 17, 2008 5:12 pm

Tell the lady and her daughter that if she is that nervous exiting the property she either needs to stop enetring or darn well stop driving or get some proper lessons

The last thing needed on our busy roads is silly nervous drivers

Either she is fit to drive or she is not

If she wanted more space her Mother should have bought a different property
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Postby Klingon » Tue Sep 08, 2009 2:07 pm

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


Even if the covenant specifies 'to themselves and successors in title'? That would seem to be meaningless words if what you say is true...
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Postby ukmicky » Tue Sep 08, 2009 11:34 pm

Klingon wrote:
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


Even if the covenant specifies 'to themselves and successors in title'? That would seem to be meaningless words if what you say is true...
I dont for one minute think he feels they are meaniless words.

He knows that covenants and the law relating to them is supremely complicated and goes on for ever with many things which can affect whether they can be enforced or not.

One of the first things they look for is if when the covenant was first entered into is, was it meant to run with the land and bind all successors.

The words "successors in title'"have won many cases.

Theirs many things which they look at like

Is the covenant registered

Have you legally had notice of it which you need to of had for for it to bind you if you purchase land that the covenant is burdening .

Having notice of it can be yes or no depending on many things like . Was the land registered at the time the covenant was first entered into. What year the covenant was first entered into.

For example if the covenant was entered in on or after 1st January 1926, but on or before 26th July 1971 the landowner will not be deemed to have notice of it unless it is registered as a class D land charge.
Being registered as a class D land charge can impose an equitable burden upon the land,allowing it to run to all successors in title.

However after 26 th july 1971 it doesn't need to be registered as a class D on all occasions which depends on certain exceptions.

And then their is other dates with other terms which deem if you have had notice.

Ive been reading and trying to teach myself a bit about covenants for the last month or so and boy is it confusing ,i just wish they worded things in the way that was easier to understand. :D

I can totally understand why conveyancers and like charge so much. The studying must be intense and their brains must be like sponges having to take in ,understand and then retain so much confusing information.
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Postby Alan Harris » Wed Sep 09, 2009 12:10 am

Dear Klingon

I think that covenants are binding on the purchaser of a property but not on third parties who were not parties to the covenant in the first place. Thus if there is for instance a covenant requiring a house owner to maintain a fence that passes to the sucessor in title. If the neighbouring ownership changes the new owner can not make use of the agreement which may have been made by the previous owner. My understanding is that you purchase a property with all the restrictions included in your deeds but you cannot excercise the a covenant in a neighbour's deeds unless you are the beneficiary. If there is a covenant in your deed which requires you to maintain a boundary it will be held in the Land registry and will be enforcible. If there is no covenant in your deed but your predecessor maintained a fence you would not be obliged to continue to follow the proctices of the former owner because they did not sell that liability to you.

If there was a covenant in your deeds established by a former owner to, say, not build a wall over a certainlocation because it would obscure a view which the previous vendor was keen to keep available then you woould be prevented only by the person who sold the land with that restriction. If the person who wished for that covenant were to leave the location to live abroad there would be no-one to enforce the covenant unless that person returned from abroad and wished again to avail themselves of the view if they also continued to own the property from which the view could be seen. It is not possible to put restrictions in land in perpetuity. You have to retain ownership of the benefit. Often the owners of church land seek to ensure that the church land is not used for instand for the sale of alchohol and establish covenants to this effect. If the church membership dwindles and there is no-one who benefits from that restriction I do not believe that the land remains restricted from such use for ever in perpetuity.

Very interesting that people who owned land wish to impose their restrictions for ever even when they have no ownership interest and have the mistaken belief that their own wishes should be imposed on anyone who purchases it for ever and a day just because they wrote it down and money maybe was exchanged with someone once.

best regards


Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
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Postby Alan Harris » Wed Sep 09, 2009 12:23 am

Dear All

Just to add a further ridiculous thought.

If covenants carried over in perpetuity for all sucessors in title we would all need to be legal geniuses. What about the mediaeval lord who sold the plot to a merchant subject to the merchant paying a fee in wool every lady's day, have you the current owner got to seek the sucessor in title to the Lord and buy shares in a sheep ferm so that you could continue the covenanted duty?

best regards

Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
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Postby ukmicky » Wed Sep 09, 2009 2:25 am

Alan Covenants can definitely run to successors in equity and many have been enforced. It doesnt take much to find a case if you google.

A negative or restrictive can be enforced.

Positive covenants cant. Basically if it requires someone to pay for something then it cant be enforced

However :D

During my recent research into covenants i came across an exception to the rule which may be of help to you klingon in your situation.

Its a really old law,its a burden & benefit exception which can take precedence over the ruling that positive covenants cant be enforced and allows you to kind of enforce the wording of the positive covenant but not as a covenant. (now im getting confused) You will get what i mean.

Its been used in the past where people have refused to pay maintanace costs to ROW,s etc

Basically the exception means a person cant benefit from the land if they are not prepared to also fulfil the burden part as well.

I believe it must be written in the same conveyance, the burden has to form part of the original benifit covenant. And it must be expressed in such words that show the benefit part of the covenant goes hand in hand with the burden for the benefit to exist.

The case you need to look at is Halsall V Brizell (1956). Google it ,their is quite a bit of information on it some sources explaining it much better than others.


Here is a quick overview
http://www.law-essays-uk.com/revision-a ... rizell.php
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Postby Klingon » Mon Oct 18, 2010 11:38 am

"the obligation can be enforced by B even if A moves on"

It would be useful to clarify that, in this situation, it is A that can be forced to attend to the duty, not the new owner, C.

"Basically the exception means a person cant benefit from the land if they are not prepared to also fulfil the burden part as well"

That's true, but ONLY if the benefit (e.g. a right over land) and the burden (e.g. the duty to maintain it) are INTIMATELY linked. The rule in Halsall v. Brizell DOES NOT apply to situations where someone has been given, for example a right over land in return for an undertaking to re-roof - the definitive case being Rhone v. Stephens 1994.
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Postby Conveyancer » Mon Oct 18, 2010 1:49 pm

Klingon wrote:"the obligation can be enforced by B even if A moves on"

It would be useful to clarify that, in this situation, it is A that can be forced to attend to the duty, not the new owner, C.


Yes, A is liable. That is why when A sells he should obtain an indemnity covenant from C. If A is sued he joins C in the action. So, where there is a chain of indemnities the current owner in practice remains liable, though he can never be sued directly by B.

Klingon wrote:"Basically the exception means a person cant benefit from the land if they are not prepared to also fulfil the burden part as well"

That's true, but ONLY if the benefit (e.g. a right over land) and the burden (e.g. the duty to maintain it) are INTIMATELY linked. The rule in Halsall v. Brizell DOES NOT apply to situations where someone has been given, for example a right over land in return for an undertaking to re-roof - the definitive case being Rhone v. Stephens 1994.


Quite. The "no benefit without burden" rule is not absolute.
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Postby Klingon » Tue Oct 19, 2010 10:15 am

What is interesting is that, where I have sold property in the past, and there has been a query about liability by potential buyers, the way in which I have always dealt with it, under advice, is to buy an indemnity policy FOR the new owner, in other words, the reverse of what has been discussed previously. It seemed to me to be a very sensible, cheap and effective means of dealing with both potential liabilities and buyer nervousness, as it always allayed their solicitors concerns immediately, allowing the sale to proceed without a hitch. How it would work out in the event of a claim, I've no idea!

Any view on this?
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Postby Conveyancer » Tue Oct 19, 2010 1:21 pm

An indemnity policy may be suitable where there has been a breach of a restrictive covenant, but I am having difficulty seeing why one would be needed in connection with positive covenants.
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Re: Fencing and other positive covenants

Postby Klingon » Fri Nov 05, 2010 1:39 pm

A worthwhile revisit.

The basic position is that positive covenants do not run with the land. This means that when the land is sold, it is no longer possible to sue the new owner if he/she fails to stick to the agreement that he/she anyway was not party to.

However, following the celebrated case of Halsall v. Brizell, and although the possibility of suing a new owner remained impossible, it was held that the new owner, where the right enjoyed and the burden relating to it were intimately linked, then it was possible for the Court to order that the benefit should not continue to be allowed if the obligation is not honoured. For most readers of this, the relevance is important when it comes to private rights of way and the obligation to maintain them. A new owner with the burden of a RoW across his land can't sue someone enjoying the right if it was previously agreed with the earlier owner that he must maintain the RoW. But, he can be prevented from using the RoW if he doesn't maintain, because the two aspects - the benefit of a RoW and the burden of maintaining it - are very closely linked. This mechanism would not apply if the deal was to allow a RoW in return for cleaning the landowner's windows every fortnight, say (Rhone v. Stephens is the definitive case here).

What is odd is that so many solicitors, knowing that positive covenants don't run with the land, nevertheless include the term "for him/her self and his/her successors in title" in such covenants. If it were possible to overcome common law by any old solicitor simply inserting a statement to its contrary, then we would find ourselves in a very convenient but hopelessly muddled situation very quickly. The only possible difficulty is this question: if there is a covenant to fence, and you want to enjoy your land, can the fencing and the enjoyment of land ever be held to be intimately linked, so that it falls under Halsall v. Brizell? It's not something I find easy to answer.
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Re:

Postby Klingon » Fri Nov 05, 2010 1:41 pm

Conveyancer wrote:An indemnity policy may be suitable where there has been a breach of a restrictive covenant, but I am having difficulty seeing why one would be needed in connection with positive covenants.


I think the policy covers all legal liabilities, such as planning, covenants, and so on. Very simple, quick, well-known amongst solicitors and very cheap!
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Re: Fencing and other positive covenants

Postby ukmicky » Sun Nov 07, 2010 10:14 pm

Klingon

For Halsall v. Brizell to apply in any situation

Firstly they have to be given the chance to renounce any right to benefit and if they were to do so it would only renounce their personal right.

They also have to be in a position to renounce it. In other words if in order to access their property by car or foot they will have no choice but to use the ROW they would not be in a position that would allow them to renounce the benifit ,so Halsall v. Brizell would not apply

Which is why the ruling is very limited to situations it covers.
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Re: Fencing and other positive covenants

Postby Klingon » Mon Nov 08, 2010 5:32 pm

ukmicky,

I agree in general, but the original case related to the use of sewers, and there was no alternative but to use them (other than chuck human waste onto the street, which would breach other laws and so not be a reasonable option). So, I think the test is whether you want to have the benefit or not; I don't believe that 'necessity' applies in this sense. In Halsall, the owners had a choice: to use the sewer or not. It didn't deviate into discussions on whether or not there was an absolute necessity to use those sewers; by your argument, you could say that there are other ways to dispose of human waste - such as a cesspit or such like. The matter was merely one of choice and nothing else. If they wanted the benefit, which they "clearly did" they had to attend to the burden. Personal right also didn't come into it by definition of the Halsall case, as the matter in Halsall was one of positive covenants applying in future, beyond those made by other persons.
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