28 days to remove fence - breach of covenant

28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Mon Jan 09, 2017 10:29 pm

¬¬Hi All

First of all thanks for welcoming me to the forum. I can see there are many members here who are well versed in garden issues and as I am not, any replies will be appreciated.

To cut a long story short I moved into my home just over a year ago and unfortunately moved next door to the most disliked man I have ever met. He had already fallen out with 13 households, past and present and bearing in mind out there is only 26 houses in the street that is quite a good record. Anyway, without boring you too much he shouts at the children playing on the front, confronts people’s wives thus goading their husbands in an argument and calls the police for anything ranging from pogo sticks being too loud and dogs having a turd on the green. His visitors would park on my property when they came over and say the gravel between our block pavings was shared but after looking at my title deeds I realised it all pretty much belonged to my property.

I decided to put up a fence at the front of our property. There are other houses in the street who have fences/hedges vertical blocks, to mark their boundaries so I thought as the precedent had already been set it wouldn’t be too much of an issue. The fence was on my boundary and I gave him a few inches for good measure so he couldn’t push it too far. The day I erected the fence he bombarded me with abuse. Whilst putting up the fence our other neighbours could see what was happening so came over for moral support.

This was back in September and I haven’t spoken to him since, although I had to talk to the police who he called on me for ‘harassment’.

A couple of days ago I received a letter from his solicitor stating I need to remove 6 foot of the fence or face court action. Please see the letter below;

‘We confirm that we have been instructed by our above named client who resides at 15 ****.

We have had sight of the Land Registry Title Documents in relation to your property situated at 16 **** and we have enclosed a copy of these documents for your reference. You will see that there
is a schedule of restrictive covenants and covenant 1 states as follows: —

“neither to erect any wall or fence or plant or grow any hedge in the area lying between the forward
edge or edges of any dwellinghouse erects on the Property and the roads or footpaths abutting the
Property nor to alter the construction or vary the height of any wall or fence erected or to be erected
by the Transferor in the said area”

We understand that in September 2016 you erected a fence separating your driveway from our client's
driveway which is a direct breach of the aforementioned covenant.

The fence which you have erected effects our clients use and enjoyment of his property in that it is now
extremely difficult for him and any visitor to park their car on his driveway. We understand that other
neighbours in the area have also expressed their concern about your fence. As you are in breach of a
covenant, our client requests that the fence is removed within the following 28 days.

By way of a compromise, our client would not raise any further issues if the last six feet of the fence, from the
path inwards, are removed.

if the breach of the covenant is not rectified then we will advise our client to issue a claim at Court for a
breach of covenant. Our client will ask the Court to Order that you remedy the breach. Further, our client will
seek the costs of this application from you, and we estimate such costs to be in the region of £10,000 plus
VAT.

Additionally, you may then have a County Court Judgement made against you which could affect you in the
future.’

I will paste the covenants below;
1. Neither to erect any wall or fence or plant or grow any hedge in the
area lying between the forward edge or edges of any dwellinghouse erected
on the Property and the roads or footpaths abutting the Property nor to
alter the construction or vary the height of any wall or fence erected or
to be erected by the Transferor in the said area.

2. Not to use the property at any time for any purpose other than for the
construction of 9 private dwellinghouses and so that no trade business or
manufacture whatsoever shall be carried on and not to create any nuisance
on or use the Property or any illegal or immoral purpose.

3. Not to obstruct any of the roads footpaths or access area driveways
and parking spaces on the Estate and which the Transferees have the right
to use nor to damage or destroy any part thereof or the walls fences or
other boundary features thereof any structure or apparatus erected or
standing thereon or any plant flower or shrub or tree growing thereon.

4. No boat lorry van commercial vehicle of any description trailer
caravan house on wheels or other chattel adapted or intended for use as a
dwelling or sleeping place shall be parked left placed allowed to stand
built or erected on the property or any part thereof.

5. Not to keep or permit the keeping of any poultry livestock or pigeons
(other than a domestic animal not used for breeding purposes) on the
Property or any part thereof.

6. Not to interfere with or remove any sign or signs erected on or
affixed to the Property or on any building erected thereon by the
Transfer or the local highway or any other relevant authority pursuant to
the rights hereinbefore contained.


Schedule of Restrictive Covenants continued

7. Not to hang expose or dry or permit to be hung exposed or dried any
clothes or other articles in the area lying between the forward edge or
edges of the dwellinghouses to be erected on the Property at the date
hereof and the roads or footpaths abutting the Property.

8. To indemnify and keep indemnified the Transferor against all damages
costs and any other liabilities resulting from any non—observance or

non—performance by the Transferees of any covenants relating to the
property on the registers of the title above referred to.

There are vans, caravans, boats and commercial vehicles parked at multiple address on the estate. There are also businesses being ran from address also.

He is basically admitting in the letter that he wants me to remove 6 foot of the fence so he can drive over it and use it as an extension of his own drive. He has no access over my property and the only reason he used to drive over there was due to laziness and the fact a neighbour opposite parks his large vehicles on his drop kerb.

Where do I stand legally? I know what it says in the covenant and that is the only thing that he has got over me.

I really do not want to take the fence down as my kids now know not to go on his property. It stops him flying into the street and driving onto drive where my kids play. Everyone else in the street is happy with the fence. If I did take it down, he would park on the part of my drive every day and force a confrontation so he can call the police. He laughs out loud at me in the street and I have to bite my tongue and not retaliate as he loves confrontation as it always ends in him calling the police.

What do you recommend I do? As in my eyes the worst case scenario is taking down that portion of the fence and storing my car there or another vehicle.



Thanks for your time.
ilovemyneighbour
 
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Re: 28 days to remove fence - breach of covenant

Postby span » Tue Jan 10, 2017 12:50 am

Leave your fence up. Your covenant is between you and the property developer, not him. He can go whistle. He got his solicitor to bluff and bluster you.
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Re: 28 days to remove fence - breach of covenant

Postby Collaborate » Tue Jan 10, 2017 8:13 am

span wrote:Leave your fence up. Your covenant is between you and the property developer, not him. He can go whistle. He got his solicitor to bluff and bluster you.


You can't know this at all without seeing any of the preamble to the covenants.

It should say who it is for the benefit of, and will usually say for the benefit of the owners of specified property.
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Re: 28 days to remove fence - breach of covenant

Postby span » Tue Jan 10, 2017 9:06 am

Collaborate wrote:
span wrote:Leave your fence up. Your covenant is between you and the property developer, not him. He can go whistle. He got his solicitor to bluff and bluster you.


You can't know this at all without seeing any of the preamble to the covenants.

It should say who it is for the benefit of, and will usually say for the benefit of the owners of specified property.


Agreed, OP should seek own legal advice or post details here for us to comment. Or both.

But, see that big long letter from the neighbours solicitor? There's no mention there that he's a beneficiary of the covenant, and if he was then odds on that that solicitor would be shouting it from the rooftops.
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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Tue Jan 10, 2017 9:28 am

Title Number :

A: Property Register continued

6. (9 July 1996) The Transfer dated 7 June 1996 referred to above contains a
provision as to boundary structures.



B: Proprietorship Register

This register specifies the class of title and identifies the owner. It contains any entries that affect the
right of disposal.

Title Absolute

l.

3. (6 September 2004) The Transfer to the proprietor contains a covenant to
observe and perform the covenants referred to in the Charges Register and
of indemnity in respect thereof.



C: Charges Register

This register contains any charges and other matters that affect the land.

1. A Conveyance of the land in this title and other land dated 1 May 1987
made between (1) The British Railways Board (Board) and (2) Framex Sales
Limited (Purchasers) contains the following covenants:-

"FOR the benefit and protection of such part of the adjoining or
neighbouring property of the Board as is capable of being benefited or
protected and with intent to bind so far as legally may be themselves and
their successors in title owners for the time being of the property or
any part thereof in whosesoever hands the same may come the Purchasers
covenant with the Board not at any time to use or develop the property in
any way which would restrict the passage of the existing services beneath
the property and to remedy any damage at the Purchasers cost which may
occur to such services PROVIDED THAT the purchasers shall be allowed
subject to the above covenant to divert such services or private
substitute supplied and to reposition any substation meterhouse or other
works at the Purchasers cost provided that any such alteration
subsitution or reposition provide an equally commodius supply to the
Boards retained land and shall have the prior written approval of the
boards surveyor which shall not be unreasonably withheld".

2. A Transfer of the land in this title and other land dated 20 October 1988
made between (1) Framex Sales Limited (Transferor) and (2) ************ contains covenants details of which are set out in
the schedule of restrictive covenants hereto.

Title Number :

C: Charges Register continued

3.

(9 July 1996) A Transfer of the land in this title dated 7 June 1996 made
between (1) Raymond Little Cook and Lorraine Cook and (2) Peter James
Culley contains restrictive covenants. '

NOTE: Original filed.

**************************

Schedule of Restrictive Covenants

l.

The following are details of the covenants contained in the Conveyance
dated 20 October 1988 referred to in the Charges Register:-

"FOR the benefit and protection of the land remaining in title number
*********or any part or parts thereof and so as to bind the land hereby
transferred into whosesoever hands the same may come the Transferees
hereby jointly and severally covenant with the Transferor that the
transferees and the persons deriving title under them will at all times
hereafter observe and perform the restrictions and stipulations set forth
in the Third Schedule hereto but so that the Transferees and the persons
deriving title under them shall not be liable for a breach of this
covenant occurring on or in respect of the land hereby transferred or any

part or parts thereof after they shall have parted with all interest
therein.




Does this help? Thanks for the replies
ilovemyneighbour
 
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Re: 28 days to remove fence - breach of covenant

Postby Collaborate » Tue Jan 10, 2017 9:44 am

What you need to do now is find out what land the BRB kept hold of when it made that transfer back in 1987, then what land title number *********** is, or at least was in 1988 (referred to in the 1988 transfer), as those are the parcels of land that have the benefit of the RCs.
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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Tue Jan 10, 2017 11:04 am

Thanks collaborate. I have the title number. Who would I contact to find it this information.

There are 26 houses on the estate and they were built in 3 phases as I am sure the builders kept going bankrupt. So that's why there is a discrepancy on dates over years.
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Re: 28 days to remove fence - breach of covenant

Postby Eliza » Tue Jan 10, 2017 1:16 pm

He hasn't thought that one out very well has he?

Even if that covenant can be enforced against, the wording of it is not to have any "wall", "fence", "plant" or "hedge".

Which neatly brings you onto being perfectly free to put any other obstacle you please there in his way that couldn't be called one of those four names.

They haven't specified "large boulders" in that covenant have they? Several "large boulders" and that's job done. :D
Apologies for not giving exact personal details in my posts - you never know who is reading....
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Re: 28 days to remove fence - breach of covenant

Postby Collaborate » Tue Jan 10, 2017 7:08 pm

Eliza wrote:He hasn't thought that one out very well has he?

Even if that covenant can be enforced against, the wording of it is not to have any "wall", "fence", "plant" or "hedge".

Which neatly brings you onto being perfectly free to put any other obstacle you please there in his way that couldn't be called one of those four names.

They haven't specified "large boulders" in that covenant have they? Several "large boulders" and that's job done. :D


Or bollards. Rusty, car door-scratching ones.

Get a list of all the likely addresses and get office copy entries for all of them, but especially your problem neighbour. Check to see if there is any mention of the benefit of these covenants on his title.
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Re: 28 days to remove fence - breach of covenant

Postby SwitchRich » Mon Jan 16, 2017 5:02 pm

Interesting one! Please keep the forum updated with what happens. So many stories go untold! :)
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Re: 28 days to remove fence - breach of covenant

Postby mr sheen » Wed Jan 18, 2017 9:26 pm

It usually proves too expensive and too risky to pursue cases of breach of covenant all the way to court, so unless the neighbour has deep pockets and money to burn, this is likely to end up as nothing more than noise. The neighbour has chosen to consult a solicitor who will willingly take his money and send out letters for him. I have been involved in a number of breaches of covenants spats p, none of which went beyond a few stroppy solicitors letters. They only really become an issue when you sell and have to mention that you have breached covenants.

Let's consider the worst case scenario......he takes this all the way to court ....before the court date ...you just remove the fence!

So absolutely no need to remove the fence now. The fact that he has already suggested a compromise indicates that he isn't going to go to court but is trying his luck to get some of it removed. If he really was going to court he wouldn't accept some degree of breach of covenant.

Now to find your defence to the action so that you can cost him more money by replying endlessly to his solicitors.
This is how we put a stop to the matter.....
Went around the estate and photographed every breach of covenant - every van, lorry etc etc, every plant planted in the wrong place etc etc and the more covenants there are the more breaches you can photograph.

Printed off the internet every business registered at properties on the estate, inc an advert on Airbnb ie classed as operating as a 'Guest House', an advert by a lady who gave singing lessons ie was running a music school etc etc

Evidence of Specified breaches made by the complainant. (In one case that we were involved in the complainant had actually built a wall around his property but had the nerve to complain about parking a van occasionally!)

Then replied....
Please find enclosed evidence that your client has breached the covenants ie ....xyz
Please find enclosed evidence that the development has changed irrevocably and that the covenants have been breached across the whole development. This change in nature of the development makes the covenants irrelevant.
In view of the above, the fence will remain.

Although in this case I think some suggestions made by other contributors that don't breach the covenants are interesting! And you may want to add....
I note that the use of large boulders, bamboo grasses etc do not breach the covenants but may be less aesthetically pleasing.
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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Sun Jan 22, 2017 9:30 pm

Thanks a lot for your replies everyone.

I am going to see a solicitor on Friday just to answer a few questions, although I think you have answered the majority of them yourself Mr Sheen.


I do feel its ironic that he is actually in breach of part of the covenant himself.


I will go and take some more photos of other breaches on the estate to help my case.

It is so obvious that the reason he is mad is because he has been using our drive to extend his own and now he can't. His agrument that he can't get on his own drive is joke because he can use his drop kerb now instead of being lazy and cutting across ours.


I will keep you all up to date with what goes on.


Thanks for your time guys!
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Re: 28 days to remove fence - breach of covenant

Postby Bradden » Mon Jan 30, 2017 5:26 pm

Any updates?

I love the advice you've been given.
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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Tue Jan 31, 2017 5:31 pm

I have written a reply to his solicitor and dropped it off yesterday just waiting to see if they reply. Thanks for all of the advice it definitely help me write the reply
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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Tue Feb 07, 2017 12:29 pm

Hi All

I haven't heard anything back yet as of yet.


If I took the fence down but left the posts in place would that still count as a fence? As it would still act as a barrier for him driving over my property.
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