28 days to remove fence - breach of covenant

Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Wed Aug 02, 2017 3:57 pm

Hi All

I sent a reply advising I would remove one board from the end of the fence that goes at a right angle.

Below is the response:



"Further to your letter dated 17 July 2017 our client's stance remains the same and we have been instructed to issue legal proceedings against you. In light of the content of your letter it appears you are confused about the legitimacy of our client's legal rights for the removal of the fence, and misunderstood the advantage to our client with respect to the settlement offer made to you. Therefore we have advised our client that this letter be sent to you, as litigants in person, purely to address any misinterpretations prior to issuing proceedings.

There is no contradiction to an offer of settlement where our client would recover an advantage which he is legally entitled. Our client is legally entitled to enforce the restrictive covenant by applying for an injunction for the removal of the fence. However, our client is aware that courts have an expectation for parties to attempt to resolve legal issues prior to instigating proceedings. On this basis, and as with all out of court settlements, our client was advised to consider a settlement offer which would appear reasonable in contemplation of both parties' circumstances. A settlement offer would not be interpreted at law as a withdrawal or surrender of a claim - be it in a money claim by accepting a lower sum than owed, or a breach of rights by accepting an alternative solution.

It appears that you have understood the settlement offer made by our client, but not the advantage of the stone. There is a practical issue in relation to the distance between the side panel and wing mirror of our client's car to the fence - of which the proposed stone would not be as much of a hindrance due to its lower height. Our client has no intention of trespassing over your land, and the proposed stone would not allow him or his visitors from doing so - this quashes any argument you may seek in court relating to intended trespass as a result of removing the fence.

Whilst on the subject of alleged trespass, it is noted that there may have been accidental and infrequent misjudgement of the boundary line by visitors of our client. We do not believe this to be an issue for the court, but it is evident from the photographs provided that there was no distinct line showing the boundary line as it would have been within the stoned area. This does not grant you any right to breach the restrictive covenants, as a more simplistic and legal solution could delineate the boundary - including the more commonplace solution of changing the surface material within your boundary to create a contrast, or the placement of a small feature - like a stone.

Finally, we have discussed your counter offer with our client. Your offer can not be accepted without clarification to its meaning. You have not provided any measurements or a drawing to show how far back you propose to take the fence. We therefore request that you provide measurements and a drawing/plan to show your intention. Should your counter offer merely be to remove the very end panel which is at a 90 degree angle to the fence, then it would be rejected on the basis that it does not meet our client's main objective. The court will not negotiate a settlement between parties - the fact of whether your fence breaches a restrictive covenant will be the only issue to be tried. The remedy available to the court is for an order that the fence be removed in its entirety. Our client will also be seeking legal costs to be paid by you as part of the court order.

Should you fail to accept our client's settlement offer or fail to propose an acceptable counter offer by Monday 7 August 2017, the application will be filed with the court without any further correspondence with you. You are reminded again to seek independent legal advice."


The irony is he knew fine well where the boundary line was. I have him on video moving my boundary marker over about 10cm thus being no where near the places where him and his family would park.

I didn't think his wing mirror/door opening could go over the boundary?
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Re: 28 days to remove fence - breach of covenant

Postby despair » Wed Aug 02, 2017 6:54 pm

Clearly he thinks he is right no matter what but cant afford to employ legal representation

Sounds odd to me

Have you not got Legal Expenses Cover somewhere
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Re: 28 days to remove fence - breach of covenant

Postby MacadamB53 » Wed Aug 02, 2017 8:45 pm

MacadamB53 wrote: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 Aug 03, 2017 10:00 am

I still think the compromise the neighbours solicitor has offered seems reasonable. This may be an issue if this goes to court in the neighbours favour.

You get to keep the fence, in contravention of the covenant, so they can't come onto your property again. You get a big stone to prevent it at the end preventing them going on to your land there as well.

There may be issues when either property is sold though so this needs to be covered in a contract....I would offer this...acceptance of their offer on the basis that a contract is drawn up that enables a fence to remain there permanently without threat of claims from current or future neighbours and that the contract can be presented as evidence in the event that it is disputed later.

Personally I would pay my own solicitor to draw up the contract
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Re: 28 days to remove fence - breach of covenant

Postby arborlad » Thu Aug 03, 2017 10:37 am

ilovemyneighbour wrote: • 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:.




Don't think the solicitor has thought this through properly, to be effective it would have to be of a size and weight that can't easily be manhandled or moved by any wheel that touches it, to comply with their demands it would have to substantially encroach onto your driveway - not acceptable.
arborlad

smile...it confuses people
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Re: 28 days to remove fence - breach of covenant

Postby MacadamB53 » Thu Aug 03, 2017 11:50 am

arborlad wrote:
ilovemyneighbour wrote: • 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:.




Don't think the solicitor has thought this through properly, to be effective it would have to be of a size and weight that can't easily be manhandled or moved by any wheel that touches it, to comply with their demands it would have to substantially encroach onto your driveway - not acceptable.
wouldn't replacing the fence post with a stone gatepost comply whilst not substantially encroach onto the OP's driveway?
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Re: 28 days to remove fence - breach of covenant

Postby arborlad » Fri Aug 04, 2017 11:05 am

ilovemyneighbour wrote:Hi All

I sent a reply advising I would remove one board from the end of the fence that goes at a right angle.

Below is the response:




Do you mean one panel?..............any chance of a sketch or anonymised title plan to explain how the right angle fits into the picture.




I didn't think his wing mirror/door opening could go over the boundary?




You are correct - it is a trespass.
arborlad

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Re: 28 days to remove fence - breach of covenant

Postby ilovemyneighbour » Thu Aug 24, 2017 4:07 pm

Hi everyone just another update I have decided to take the fence down in full and put something else in its place. He wouldn't accept any proposals are put forward and I don't want him to have any sort of hold over me with the fence being there it is not worth the hassle anymore is he has a lot more time than me to sit and obsess over the fence.

The question is guys looking at the Covenant on the first page what could I put in it's place that does not breach any covenants. Thanks for the ideas put forward so far any new ideas would be grateful however extreme they may be.

I know a few of you said I should accept the removal of 2 metres off the end but as long as that fence is there he will have something over me as I did breach the Covenant whether or not mitigation would have helped me in court I wasn't prepared to lose financially.

Thank you all for your help and the fence has been a great addition for the last year but sometimes you just have to give in and look at alternatives especially when it could cost me financially.
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Re: 28 days to remove fence - breach of covenant

Postby ukmicky » Sat Aug 26, 2017 12:04 am

A few of these landscape features

http://decorativeaggregates.com/product ... gK-m_D_BwE

Or a few of these strategically placed


I would also add a few small slow growing bushes that contain very sharp needles.

Dig a strip along the boundary line and fill it with something that will get on there shoes if they step on it . Can you buy large bags of chalk maybe.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: 28 days to remove fence - breach of covenant

Postby Roblewis » Sat Aug 26, 2017 9:30 am

These do also make very good boundary line markers :D

https://killeshalprecast.co.uk/civil-dr ... ent-kerbs/
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