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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi. We have a restrictive covenant in our deeds with the following

Resolved Question:

Hi. We have a restrictive covenant in our deeds with the following wording: "To keep the land tidy and well maintained at all times free of but not limited to rubbish litter refuse disposal containers of all types untaxed or unused motor vehicles or equipment undergoing maintenance or repair bonfires washing lines and clothes drying apparatus water features cold frames glasshouses vegetable gardens". Our neighbour believes this implies we cannot park any cars in this area, which seems absurd as the wording only refers to untaxed/unused vehicles. What do you think?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I confirm if you are the first owner of the property please - i.e. the property is new build?

Customer:

No - we bought the property in July. The covenant was with the owner in 1999

Customer:

That owner sold the property in 2008 to the vendor we eventually bought from in July 2013.

Joshua :

Thanks

Joshua :

I agree entirely with you. the covenant will not restrict the parking of vehicles on the land which the covenant purports to bind the two reasons.

Joshua :

The first reason is as you correctly identify, the covenant restricts itself to the parking of untaxed or unused motor vehicles and equipment and such vehicles undergoing repairs. It is quite clear that the covenant is not intended to prevent the parking of taxed and maintained motor vehicles

Customer:

Phew, that's exactly what I hoped. You think it is a totally black and white case?

Joshua :

the second reason however I agree with your assessment is because the covenant is not binding. This type of covenant is what is known as a positive covenant - to do something - as opposed to a negative covenant - not to do something. there are a number of differences between positive and negative covenants however one of the most important distinctions is that positive covenants do not bind future successors in title after the original parties. only negative covenants bind successors in title subject to certain conditions being fulfilled. In order for a positive covenant to bind a successor in title, that successor in title must enter into a new deed of covenant. In the assumption you have not entered into a new deed of covenant with regards XXXXX XXXXX covenant, you are not bound by the same

Joshua :

accordingly, providing you have not entered into a new deed of covenant with the neighbour on your purchase of the property - this would have been a specific deed headed deed of covenant and you would know if you had done so - I do not consider there is any possibility that the neighbour can enforce the covenant against you and particularly cannot use the covenant to attempt to prevent parking of taxed motor vehicles is even notwithstanding the above, covenant does not restrict parking of taxed motor vehicles

Joshua :

is there anything above I can clarify for you?

Customer:

No that gives me the confidence I need for now. Many thanks!

Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Well just one thing - why is this a positive covenant? Isn't it just telling me what I can't do? Or is it the bit about keeping the land tidy that is positive?

Joshua :

A perfectly good question. Because it is a covenant telling you to actively keep the land free of litter etc. It could have been expressed as a negative covenant - "not to litter the land and not to park untaxed cars and so on" but on the wording you have posted it is a positive covenant "to keep the land tidy etc". Negative covenants require a prohibition against doing something whereas positive covenants tell you to do something.

Joshua :

Is there anything else I can help you with?

Customer:

that it. I will rate you now. Thanks again

Customer:

I meant that's it!

Joshua :

Many thanks.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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