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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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If the property next to us break a covent in there deeds

Resolved Question:

if the property next to us break a covent in there deeds running a business can I sue and what could I expect to get
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
What other covenants are there in the deeds? Any such as prohibitions on having a fence or hedge or an aviary or parking a caravan or having a satellite dish anything like that?Has anyone else, including you breached any of the other covenants?How long has this business been run for?Does the business have planning permission?What is the nature of running the business but the neighbour house?Full background details is always useful. Thank you
Customer: replied 1 year ago.
there is very little in the covents as they where from the 1890s
the covant states the respective purchasers of lots 43 to 113 inclusive their heirs or assigns shall not at any time or times exercise or carry on or permit or suffer to be carried on any time or times noisome or offensive trade or business of any kind or description whatsoever upon any part of this lot or upon any messuage or other building which shall at any time or times be built upon any of the said lots
18 to 24 m tattoo studio built about 2 years ago no planning applied for.
rented house tenant told us they did not need planning, owner gave permission
we have not breached or any other house hold in this area
Expert:  F E Smith replied 1 year ago.
Thank you. I am assuming that you own the property which has the benefit of the covenant and that the adjacent property or another property has the burden of compliance with the covenant.The issue of the planning permission is not relevant with regard to the covenant. It is possible to get planning permission in breach of covenant and it’s possible for there to be no covenant but still have planning permission refused.The covenant is ambiguous. It is very common in old covenants.Does it mean no offensive trade or business of any kind or does it mean no trade of any kind? If there was a, (legal construction is generally done with no punctuation) after the word trade, then the covenant would preclude this business. As it is, it’s not certain whether it any business or just offensive or noisy businesses. It would be for a court to decide.If the court decided it was noisy or offensive, then although you may not like tattoos and find them offensive, it is not what is offensive in your opinion but what is offensive in the mind of the average person and it’s unlikely that a tattooed studio is going to be offensive.You ask whether you could sue and what you could expect to get. If you are thinking about compensation, probably very little. What you could expect best would be a court order for the business to cease trading within a period of time.To get this to court however you could easily be risking court fees of several thousands of pounds and possibly 10 or 20 if the business decided to defend the action.The rule with regard to the enforceability of covenants is that they must be no more than is necessary to protect the dominant land. You must own the dominant land which has the benefit of the covenant. If you don’t, you have no action to bring.In addition, you cannot bring an action for breach of covenant simply because you do not like it. Just because there is a covenant which has been breached does not necessarily mean that you can bring enforcement proceedings against it.There is another potential problem surrounding a case in the name of Hepworth v Pickles which states that the covenant has been continually breached for 20 years or more, then it is no longer enforceable. Hence, if these premises had been used as a business for 20 years before the current use regardless of if it was 20 businesses all for 1 year each, then the covenant is no longer enforceable.Can I clarify anything for you?Please don’t forget to rate the service positive, it is an important part of the process by which experts get paid.Best wishesFES
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