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Stuart J
Stuart J, Solicitor
Category: UK Property Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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5 years ago i built a sun deck in my garden an obtained retrospective

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5 years ago i built a sun deck in my garden an obtained retrospective planning permission, my Neighbor has pointed out that this is in breach of a restrictive covenant he holds against my property. If i offer to remove the sun deck am i liable in any way for the time it has been there?
Submitted: 11 months ago.
Category: UK Property Law
Expert:  Thomas Judge replied 11 months ago.
Thanks for your question. Please remember to click ACCEPT once you get my answer.

Some restrictive covenants have little effect over time and it would be worth having a solicitor look at the deeds before making a decision. Whilst you can in theory claim damages for such a breach it would normally be for a very small sum of money and to that end in a case like this hardly worth the costs if seeking such damages
Thomas Judge, solicitor Advocate
Category: UK Property Law
Satisfied Customers: 8758
Experience: award winning lawyer with over 15 years experience
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Expert:  Stuart J replied 11 months ago.

I apologise this came up was waiting for me but I see that someone is already dealt with it.

Expert:  Stuart J replied 11 months ago.
I think your expert is off-line.
I agree with everything he has said above.
Meanwhile, I think I can probably add something to the above which might be of use to you.
Check your deeds and the neighbour’s deeds to see whether there are any other covenants such as keeping a caravan, having a fence having hedges, having an aviary, keeping poultry etc etc. Which he has not complied with.
If he is not squeaky clean (in legal parlance he does not have “clean hands”), he cannot enforce the covenant against you.
He cannot breach what covenant he likes by growing a hedge or putting a fence up or whatever (if those type of covenants are indeed there) and then seek to selectively enforce covenants against you which suits him.
Incidentally, once a covenant has been continually breached for a period of 20 years without objection, it is no longer enforceable.
With regard to the enforceability of covenants in general, if he were decide to go to court on this, the court will only enforce the covenant insofar as it is reasonably required to protect all the surrounding properties. So ever the covenant is really over the top which says that (and I am exaggerating to prove the point) you cannot plant daffodils in the back garden, that would not be enforceable because it is more than is reasonably required to protect surrounding properties.
Kind regards
Customer: replied 11 months ago.

Very Interesting, the wording in the covenant includes "no construction temporary or permanent shall be made on the parcel of land adjacent to my property" (my garden). Prior to building the Sun Deck my neighbor erected a 7 foot high fence along the boundary of the area covered buy the covenant (with the bad side facing us) behind which he planted conifer trees which are now at least 3 meters high. His property does overlook our garden from the 1st floor but from ground level there is no view and now of course our view over what was formerly open land is completely obscured.


So my question is although he holds the covenant the fact that he has erected a fence along the boundary does that constitute a construction so is he in breach of his own covenant


Kind Regards


 

Expert:  Stuart J replied 11 months ago.
Put the following into Google, Equity clean hands
it will give you plenty of reading which explains what I’m talking about.
It would ultimately be for a court to decide whether the fence is a construction or not.
However for the purposes of this, and to avoid the whole matter going to court, and assuming that it is the sun deck which he is arguing about breaches that covenant, I think you have an excellent argument that his fence is just as much a construction as your sundeck is.
A fence can be constructed or can be erected and I think that the words are interchangeable.
If you don’t get the sundeck, he does not get the fence provided that the fences on the piece of land which is defined as “the parcel of land adjacent to my property”.
Are you sure that is the exact wording? Does it actually use the words “my property” because that would be most unusual. If those are the exact words, and whoever put the covenant on has moved there is an argument that the covenant is personal to the person who lived there and once they have moved, the covenant no longer applies.
For the covenant to apply, it must touch and concern a land and not be for the benefit of a person.
The reason I pick on the words “my property” is that once that person has moved, it no longer becomes “my property” because he is no longer there! Does that make sense?
There is no protocol with regard to the good side of the fence or the bad side of the fence.
The trees are not a construction.
Please bear with me today because I am online and off-line.
Customer: replied 11 months ago.

Yes sorry it does not say "My property" it says the area coloured Blue...the fence is on the boundary of that area. Is it an issue being on the boundary as opposed to being "On" the parcel of land?

Expert:  Stuart J replied 11 months ago.
if it is on and not over the boundary, that does not help you because if the person who put the covenant on owns the land on one side and they put the fence up, on their own land which does not have the covenant on, then you have no argument.
The covenant must apply to both pieces of land.
A person can build whatever construction he likes on his land provided there is no covenant on it but can still put a covenant on your land that you can not do the same. That appears to be the situation here.
However if the covenant was put on not by this owner by a previous owner (as usually would be the case when the land was sold because I imagine that your piece of land used to be owned by the neighbour), I think the wording “my land” assist you because this neighbour is no longer the person who was referred to as “my”.
If however the person who put the covenant on is this neighbour, you are, metaphorically, stuffed.
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19623
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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