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Stuart J
Stuart J, Solicitor
Category: UK Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Hi, I live in a 10 year old house in a development in Surrey,

Resolved Question:

Hi,

I live in a 10 year old house in a development in Surrey, England.

The land to the front aspect of my property is covered with decorative large pebbles with a paved footpath leading off my property to the street. There are also black railings which mark the boundary between my property and the street. My property is part of the central area of the development which is made up of 50 townhouses forming a circle around a central green. Each property has exactly the same frontage including pebbles, pathway and railings.

I wish to replace the stones with high quality paving that matches my pathway and to add small shrubs infront of my railings to provide privacy. Currently it is not possible to use the land in any useful way as the stones prohibit this.

The estate management company have informed me that I am not able to carry out this work as it contravenes the following clause in the property deeds:

Stipulations:

'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.'

Is there any way this can be challenged?
Is this stipulation enforceable?
Are there any precendents or loopholes that I can use to get round this?

Thanks.
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name isXXXXX and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.
Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case. I will be online and off-line all day most weekdays and weekends.
Have they given any reason for this? Why should it be stoned?
Expert:  Stuart J replied 1 year ago.
Have all properties got the same covenants?
Has anyone else done what you propose or similar?
Customer: replied 1 year ago.

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.

Expert:  Stuart J replied 1 year ago.


Thank you. Yes, the covenants like this can be
challenged and whether the challenge fails or succeeds depends on how onerous the
covenant is and whether it goes further than is needed to protect the interest
of whoever put the covenant on in the first place.

This particular kind of covenant is called an "estate
covenant" and is the kind of covenant which is enforceable not but just by the
developer but by all the other properties on the development against each
other.



Of course you can challenge this but I imagine
that the management company is not going to roll over and they would let you
litigate it. Litigating this kind of covenant is not cheap and it is by far
from risk free. You can check your house insurance to see if you have legal
expenses cover that would pay for the cost of this but in all honesty, even if
you have legal expenses cover I would be extremely surprised if it was covered.



There is no legal aid and if you went to court
and lost, you could face a legal bill in respect of the management company's
costs which could approach £10,000. It would be different if all the other
properties in the development fault same because a few hundred pounds each from
30 properties is a big chunk of money and if I were the management company, it
is not something that I would be wanting to fight.



The privacy issue I think is not a good argument
quite simply because the property is no different now than when you moved in.



I'm sorry, I appreciate that this is not the
answer you wanted but there is no point in me misleading you. I have a duty to
advise you truthfully and honestly, even if that answer is unfavourable.



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further?



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Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20674
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 2 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi,


 


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?

Expert:  Stuart J replied 1 year ago.

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.

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20674
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 2 other UK Law Specialists are ready to help you

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Stuart J
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PGD Law. 20 years legal profession, 6 as partner in High Street practice