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apparently all the properties in the part where I live are under the same covenant. No one else has made 'permanent' alterations along the lines I am proposing, although many have planted shrubs, added large decorative pots, chairs, benches etc.
Thank you. Yes, the covenants like this can bechallenged and whether the challenge fails or succeeds depends on how onerous thecovenant is and whether it goes further than is needed to protect the interestof whoever put the covenant on in the first place.
This particular kind of covenant is called an "estatecovenant" and is the kind of covenant which is enforceable not but just by thedeveloper but by all the other properties on the development against eachother.
Of course you can challenge this but I imaginethat the management company is not going to roll over and they would let youlitigate it. Litigating this kind of covenant is not cheap and it is by farfrom risk free. You can check your house insurance to see if you have legalexpenses cover that would pay for the cost of this but in all honesty, even ifyou have legal expenses cover I would be extremely surprised if it was covered.
There is no legal aid and if you went to courtand lost, you could face a legal bill in respect of the management company'scosts which could approach £10,000. It would be different if all the otherproperties in the development fault same because a few hundred pounds each from30 properties is a big chunk of money and if I were the management company, itis not something that I would be wanting to fight.
The privacy issue I think is not a good argumentquite simply because the property is no different now than when you moved in.
I'm sorry, I appreciate that this is not theanswer you wanted but there is no point in me misleading you. I have a duty toadvise you truthfully and honestly, even if that answer is unfavourable.
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I have thought about your reply and decided to look at the wording of the stipulation again:
'Maintain that that part of the property which has been landscaped (if any) to the same standard and style of landscaping as provided by the Transferor and to the satisfaction and in accordance with the requirements of any of the authorities.'
The wording ' standard and style of landscaping' is in my view open to interpretation.What would actually consisitute a change to the style of and standard of landscaping? M|y plan is to retain a proportion of the stones around the perimeter of the property and just extend the paved footpath to make it more of a patio. I will be using exactly the same materials as already in situ.
I have since taken a walk around the development under this stipulation and noted that some properties have planted large shrubs in the stone area and obscuring the front of the properties. Some have placed an array of potted shrubs over the stone area. Others have laid extra paving to the side of their property. In my view, all these could possible constitute a change in the stnadard and style of landscapin. If these have been done 'unchallenged' then surely a precendent has been set?
I have resisited bringing this to the attention of the Estate Management as I want an outcome which is positive for all and not where we all get banned from making changes. This would lead to resentment and whislte blowing.
I am minded to go ahead with the work, so the onus is on the estate management to litigate - what would be your view on this approach given the situation outlined?
The onus is on the management co or whoever has the benefit of this to litigate.
Tell them that if they litigate against you, you expect all the others (list them) who have done this to be litigated against also and if the mgt co doesn’t bring them imnto the litigation, you will bring them is as second defendants.
What you have done of course is asked whereas all the others have just gone ahead.
As you have asked, they must give you the straight line legal answer according to the deeds.
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