28 days to remove fence - breach of covenant

Re: 28 days to remove fence - breach of covenant

Postby MacadamB53 » Tue Feb 07, 2017 3:25 pm

ilovemyneighbour wrote: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.
count in what sense? an owner of a property which benefits from the covenant would have to get the courts to decide this as part of their case against you.

but if they've breached ANY covenant (including their predecessors) or others on the estate have breached and the neighbour isn't trying to enforce against them also, this will not go to court.

Kind regards, Mac
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Re: 28 days to remove fence - breach of covenant

Postby MacadamB53 » Wed Feb 08, 2017 9:00 am

Hi all,

a question if I may...

let us suppose no other breaches have ever occurred on the estate.

would it be viewed as acquiescence on the part of the neighbour during a future court action relating to a different breach if he doesn't take this one to court? ie despite his informal attempts to enforce the covenant...

in other words, does telling the OP to remove his fence give the neighbour 'clean hands' should the OP breach another, more significant, covenant such as 'only one dwelling'?

hope that makes sense.

Kind regards, Mac
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Re: 28 days to remove fence - breach of covenant

Postby mr sheen » Wed Feb 08, 2017 9:44 am

Come on Mac.....you can't pretend you don't know the answer to that :D ..however this is an area of real interest to me so I will indulge you.....

Theoretically, Any breach of covenant can be taken to court but the claimant has to prove that he has the right to seek to enforce and has suffered losses as a result of the breach. The latter, and the risk of costs, is why this matter rarely goes to court. Losses due to someone next door hanging out washing at the front of their house on a couple of occasions, would result in zero financial losses so one would be stupid to take that to court. Next door parking a van/ caravan on their drive where you can't even see it may not result in any losses either so may not be worth taking to court, however, for some it may annoy you enough to take a chance on seeking to get removed as long as you have money to burn since wheeled vehicles can be moved and then no longer breach the covenant.....in which case you then may win an injunction to stop it returning but since e breach is no longer occurring you risk losing in relation to costs. But all these are erratic/non-permanent breaches that result in minor actual losses but high costs so the risk of it costing money is very high. However, building another property MAY result in a permanent breach and reduction of one's property value and hence may or may not warrant taking the risk of a court case.

It would be up to the claimant to justify not having proceeded with the previous minor breach that resulted in minimal actual losses......and up to the Judge to decide if the issues are relevant and hence will impact the Judge's decision.....who knows????.....this is the chance you have to balance up when considering legal action.

There are lots of examples of breach of covenant that have gone to court and cost masses...eg Sandbanks windows case....but if you live in Sandbanks, you probably have enough cash to risk court and the values of properties are worth taking a risk for.....for the rest of us, it's a risk you may not want to take with your hard-earned readies!
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Re: 28 days to remove fence - breach of covenant

Postby MacadamB53 » Wed Feb 08, 2017 9:55 am

Hi mr sheen,

thanks for indulging me with your thorough response - grounded in the real world too.

Appreciative regards, Mac
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Re: 28 days to remove fence - breach of covenant

Postby arborlad » Wed Feb 08, 2017 9:57 am

ilovemyneighbour wrote: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.




Irrespective of whether this fence can be enforced against by anyone, it's never a good idea to leave a gap between what will become a boundary feature and the boundary.

If a reply to the solicitor is needed - something like this:...........Dear Mr. Solicitor, the fence was erected to prevent your client and his visitors from trespassing on my property with their vehicles and also the safeguarding of my children. It has achieved both of those results.
arborlad

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Re: 28 days to remove fence - breach of covenant

Postby jonahinoz » Tue Feb 28, 2017 7:29 pm

But all these are erratic/non-permanent breaches that result in minor actual losses but high costs so the risk of it costing money is very high.

Hi Mr Sheen,

That almost makes me want to hire some temporary fencing, erect it around my daughter's garden that is amenity land and must not be fenced ... see who crawls out of the woodwork. :twisted:

John W
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Re: 28 days to remove fence - breach of covenant

Postby mr sheen » Tue Feb 28, 2017 7:56 pm

Sorry J amenity land is a different kettle of fish altogether!

restrictive covenants that are difficult/expensive to enforce relate to land owned by neighbours that is subject to restrictive covenants.

Designated amenity land may well result in the LA enforcing the rules relating to said amenity land and billing you for their time and costs to take action against you.
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Re: 28 days to remove fence - breach of covenant

Postby COGGY » Tue Feb 28, 2017 9:13 pm

Hi ilovemyneighbour

It sounds as though your neighbour is a big bully. Pandering to bullies normally makes them worse so imo you should not take the fence down at the present. Such action would more than likely be followed by other demands from him. As Mr Sheen has stated if the worse happened and the bully went to court (unlikely) you could simply remove the fence immediately. The letter from his solicitor sounds like a big bluff, no mention of court there.
Regards Coggy
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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Thu Jul 13, 2017 5:41 pm

Hi again.

We replied to our neighbours letter at the beginning of the year and have heard nothing back until today. He now has a new solicitor, and they have sent me the letter below. They have also attached an application for injunction form filled out if we do not follow his instruction.

We act on behalf of ******************* in respect of a claim for breach of restrictive covenant and an injunction application in respect of the breach.
Circumstances of breach
Under a Conveyance dated 7th June 1996 there is a restrictive covenant which prevents you from erecting a fence. The covenant runs in equity to our client's benefit as it touches and concerns his land and is intended to run with the land under section 78 of the Law of Property Act 1925.
Our client has informed us that you erected a fence on 3' September 2016 which separates your drive from our client's driveway. This is a breach of the restrictive covenant. To prove the fence touches and concerns our client's !and he is able to evidence, to the satisfaction of reliable case law, that the fence causes difficulty when entering and egressing from his driveway. In the circumstances our client is entitled to seek an equitable remedy in the form of an injunction. We have been instructed to draft an application for such an injunction, a copy of which is enclosed for your reference.
Proposal
We understand you erected the fence to prevent vehicles from driving over your land. In the circumstances our client proposes the following offer which will be brought to the court's attention should it be rejected and proceedings be commenced. We believe this to be a sensible and pragmatic compromise to both parties' issues:
• you remove the first post and panel of the fence (being closest to the road);
• you place a stone, of a height no more than one foot, in the position where the first post currently sits without any encroachment in our client's boundary:
• No costs.
Your claim to breach of restrictive covenant
On a separate issue in your letter dated 27th January 2017 you state that our client is also in breach of a covenant by using his property for business use. In order to prove your case you would need to establish that he is 'running a business from his dwelling house'. It is accepted that our client has used his home address on Companies House. This in itself does not prove that the business is being 'run' from the property. It merely provides an address for business correspondence. Our client has another address for the production and storage of products.
A further hurdle you would need to overcome to prove you have the benefit of this particular covenant is that it 'touches and concerns' your land at law. You fail to satisfy this requirement and so are unable to bring such claim for the covenant.
Next steps
You have 14 days from the date of this letter, being the 26th July 2017, to respond in writing and agree to the proposal outlined above. If no response is received the injunction application to remove the whole of the front fence will be filed with the court. We will also seek recovery of our client's costs in respect of making the application and hearing.
At law, the courts are favourable to an award of damages in place of an injunction. Damages are assessed as the difference in value of our client's property with and without your fence in situ. The valuations would consider the departure from the builder's plans for the front gardens to have the aesthetics of open grounds; the difficulty potential purchasers would have entering and egressing from the driveway; and our client's legal obligation to notify potential purchasers that a dispute had arisen which could not be resolved out of court.
We recommend you seek independent legal advice and look forward to hearing from you in due course.






I have had one conversation with him since the letters at the beginning of the year. He was angry as I was trimming his hedges coming into my garden as I didn't ask his permission! He said I should have asked and he would have come around to do it for me! Which would not have been an option with what is going on with the fence. He told me then he was going to take me to court and it was going to cost him 5 grand out of his pension. Then mocked me saying I would get a CCJ and not be able to afford any nice cars etc etc.

Why would he want me to take a section of the fence down again only to place a rock there? As if he wants me to do that so he can move the rock. It isn't going to benefit him and only contradicts the reasons behind wanting the fence taken down.

My questions are:

If I don't take the fence down until I receive the letter to attend court, will taking it down that day be enough to stop any financial penalties?
How can he dictate the size of the rock after removing part of the fence. If I put a rock that was twice the size would that give him ground to attempt to take me to court again for removal of all of the fence.
How could he prove his house value is less since the fence has been put in.

I know he has been calling estate agents up and asking them to write a statement saying its devalued his home, as someone let me know and they just laughed at him.


Would you recommend just taking the fence down and putting a rock there?


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

Postby mr sheen » Thu Jul 13, 2017 7:06 pm

The compromise seems reasonable to me but if you want to take it further first then that will delay things. They have to follow Court Procedure rules and seek to resolve the matter first before applying to the courts.

The business use issue is not as the solicitor suggests and this can be further exploited if you wish to do so.

The covenant indicates that the property is to be used only as a dwelling house and therefore it could be argued that it is a registered business and that the vehicles visiting the property for business purposes were driving over and parking on your land which prompted you to put the fence up in the first place. This is reason enough to refuse any offer that would allow this to happen again.

My reply would be....

We acknowledge receipt of your letter dated xyz.

We refer you to the restrictive covenants. The restrictive covenant relating to the property use indicates that the property is to be a dwelling house only. Your client's property is a registered business in contravention of the restrictive covenant. In fact in the operation of said business, business visitors were driving vehicles on my land and parking on my land which prompted me to take action and erect the fence. The repeat trespass on my land amounts to a legal infringement of my property and rights and was causing a legal nuisance.

I refer you to the changed nature of the development. Many properties have erected fences. There are vans and caravans parked at many properties. Similar to your client, properties are being used as business premises. This widespread and permanent change to the nature of the development has made the restrictive covenants void.

Having breached a restrictive covenant himself, It will be particularly problematic for your client to seek to enforce the restrictive covenants. In effect he will be seeking the assistance of court to enforce the restrictive covenants that he has chosen to breach. He is entering the legal system without the required 'clean hands' since he has contravened a restrictive covenant himself.

In view of the above we decline your compromise offer.


Or I might consider an alternative offer 'without prejudice' if the chances of him wanting to remove the business from his property is low....and continue....

In an attempt to resolve the matter however I propose an alternative resolution to your proposal, which will be brought to the attention of the court should you choose to proceed further, as follows:
The business registered at your client's property is dissolved/removed and all reference to your client's dwelling house address is removed from all relevant bodies as a business and your client enters into an agreement that neither he nor anyone else will register or operate any business at the property for the next 10 years.
In return we will comply with the terms you have outlined in your proposal and will agree not to reinstate the fence as it currently is for 10years subject to your client not contravening any of the restrictive covenants. Your client agreeing that In the event that your client breaches a restrictive covenant, the fence will be restored to its current state.

Let me have your thoughts ilovemyneighbour
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Re: 28 days to remove fence - breach of covenant

Postby MacadamB53 » Thu Jul 13, 2017 9:11 pm

Hi ilovemyneighbour,

The covenant runs in equity to our client's benefit as it touches and concerns his land

for a covenant to be valid it must touch and concern the burdened land, not the benefiting land.

the "fence" covenant - when was that agreed? 1996? between Mr & Mrs Cook and Mr Culley?

Kind regards, Mac
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Re: 28 days to remove fence - breach of covenant

Postby mr sheen » Thu Jul 13, 2017 10:37 pm

The solicitor is assuming that you will counter sue for the business use and is implying that you will not gain any recompense since it isn't interfering with you. He also wants you (and hence the court) to accept that his business is operated elsewhere but his house is merely an administrative address.....if a business is operated elsewhere then that would be it's registered address.

The main reason you want to dwell on his business is that the court will be extremely unlikely to help him since he breached the covenants FIRST (find out the dates that his business was registered at companies house so that this can be quoted in correspondence to prove it occurred well before your response) and then you just followed suit. He can't then expect the courts to help him. This is called the principle of 'clean hands'.

Your neighbour contravened the covenants first and his actions were detrimental to you and in response you then breached them to stop the adverse effects on you of his breach. He then came worse off. He now complains about action he took first ie breaching covenants.

Having looked again at this my response would be shorter....and I would refuse the compromise at this stage.

We acknowledge receipt of your letter dated xyz.

You acknowledge that your client breached the restrictive covenants first by registering his property as a business ON ................date........, when it was to be a private dwelling house only. The visitors to said business repeatedly trespassed on our land by driving vehicles over our land and parking on our land causing a legal nuisance contrary to the restrictive covenants from ......date........

In response to your client breaching the restrictive covenants and the nuisance and problems his breaches caused us over some considerable period of time, we put up a fence to prevent the continuation of the trespass and nuisance caused by your client and his business visitors that we had endured since his business was registered in ......date....

Your client is complaining about a breach of a restrictive covenant that was a direct response to his long term breach of restrictive covenants that adversely affected us. Your client set the precedent and breached the restrictive covenants first.

There has been widespread breaches of the restrictive covenants across the development to the extent that the nature of the development has been irrevocably changed.

In view of the above, we refuse the compromise offer outlined in your letter dated. Xyz.
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Re: 28 days to remove fence - breach of covenant

Postby mugwump » Fri Jul 14, 2017 7:01 am

Just to correct things. The registered address for a business is just that. A place where all official correspondence can be sent to. It does not mean that the business is run from there.

Lots of small businesses have their accountants or an accommodation address as the registered address. They don't operate from those premises.
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Re: 28 days to remove fence - breach of covenant

Postby Collaborate » Fri Jul 14, 2017 7:11 am

mugwump wrote:Just to correct things. The registered address for a business is just that. A place where all official correspondence can be sent to. It does not mean that the business is run from there.

Lots of small businesses have their accountants or an accommodation address as the registered address. They don't operate from those premises.


I agree 100%. this is a red herring. Concentrate on the changed nature of the estate only.

Have I got this right, and are they saying they only want you to remove a solitary fence panel to make their driving on and off their drive easier? How high is the fence? Are his viewing angles compromised? If that's the issue simply agree to reduce the height of the final panel, if instal a bollard at the very end. He won't be using that for opening his car door.
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Re: 28 days to remove fence - breach of covenant

Postby arborlad » Fri Jul 14, 2017 9:41 am

Collaborate wrote:
mugwump wrote:Just to correct things. The registered address for a business is just that. A place where all official correspondence can be sent to. It does not mean that the business is run from there.

Lots of small businesses have their accountants or an accommodation address as the registered address. They don't operate from those premises.


I agree 100%. this is a red herring.




Probably better if it had never been mentioned in the first place - but too late now........all getting more like the playground than the real issue of preventing the trespass.
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