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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9681
Experience:  I have been practising for 30 years.
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How do i get a covenant altered so that i can apply

Resolved Question:

how do i get a covenant altered so that i can apply for planning to have a garden wall errected?
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
What is the exact wording of the covenant please?
Expert:  F E Smith replied 1 year ago.
What is the exact wording of the covenant please? When was it put on and by who? Has anyone else built a wall?
Customer: replied 1 year ago.
it's in one of the covenant schedules 'Not to erect or plant or permit any gates walls or fences or hedges whatsoever between any wall of the dwelling on the plot and the road onto which the said dwelling abuts'
its a new build completed about 2 years ago by redrow homes-executed as a deed by abbotts walk management Ltd(company set up by redrow)
Expert:  F E Smith replied 1 year ago.
This is called an Estate Covenant. It is enforceable by the original person/entity/company that put the covenant on the property against all the properties and it is also enforceable by all the properties against each other.Covenants are only enforceable in so far as they are needed to protect any dominant land (in this case, adjacent land).There is case law ( Hepworth v Pickles) which says that once a covenant has been continually breached without objection for 20 years then it lapses. That does not apply here.As the original intention of this covenant is to keep the whole area open plan, it is likely that if you put a wall up or a hedge or other boundary feature, someone is likely to object. The longer time goes on, the less interested people will become and small walls and fences and hedges will gradually start to appear.My own house which was built in about 1969 has exactly this covenant on along with various other covenants with regard to keeping of fowl and caravans and such like. However the majority of the houses now have hedges and trees and have done for many years.The only way of guaranteeing that you don’t get to get taken to court either by the original company (who may not want to spend the money or be bothered but it is a risk you run) or one of the neighbouring properties is to ask the original company to vary it to allow a low wall or whatever it is that you want to put in place.Can I help further?Please don’t forget to rate the service positive.Thank you.
Customer: replied 1 year ago.
It is unlikely that the company would be aware and therefore would not raise objection(as you say other things to worry about being a large organisation)and if the neighbours were consulted and were agreeable it sounds as though it might be worth risking?
Expert:  F E Smith replied 1 year ago.
I cannot advise you whether it’s worth risking or not because that has to be your decision. If the neighbours don’t object however I think the likelihood is that the company, as you have said, are not going to be unduly bothered. Do remember however that it may not be your immediate neighbour that reports this but someone elsewhere. Even so, it seems unlikely the company would go to the expense of enforcing it because it would involve time and cost for them with no profit.Can I assist further?Please don’t forget to rate the service positive.Best regardsFES
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