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Hedge planted in breach of restrictive covenant-what to do?

Land, Registered Land, Planning law etc.

Hedge planted in breach of restrictive covenant-what to do?

Postby Thomas&22 » Tue Apr 05, 2016 11:19 am

Back in the early 80’s my father planted a hedge along the North and West boundaries of our family home which is now quite thick and about 1m high. I am now in the process of selling the family home and have identified there is a covenant on the charges register.

For the benefit and protection of the estate of which the property hereby conveyed forms part and so as to bind as far as may be the property hereby conveyed into whosoever hand the same may come but not so as to render the purchaser personally liable after he has parted with all interest therein the purchaser hereby covenants with the company as follows:
(a) Not to erect between the north elevation of the dwellinghouse and xxx road aforesaid any boundary walls, fences or plant or grow any hedges


There are a couple of other requirements such as not keeping livestock, not conducting business which may cause annoyance to neighbouring owners, etc but the hedge issue is the main one as it has been breached.

About 5/11 of the other properties along the said road have planted hedges too. No one has ever complained, there are only 3 original owners left from when the properties were built in the 70's others have been sold numerous times. 1 has a hedge and the other 2 do not. The original building company became part of a large national building company back in the late 1990’s.

Is it worth trying to get this restriction discharged via the land tribunal, or should I keep things simple and see if I can take out indemnity insurance. The buyers solicitor hasn’t brought this up yet, but anticipate they will.

I don’t want to pull up the hedge on the north side as it would leave the west side looking odd.

Any other options available to me regarding this?

Many thanks

LAND TRIBUNAL: The Tribunal can discharge or modify a restrictive covenant in certain circumstances including where: i) the character of the property or the neighbourhood has changed so that covenant ought to be regarded as obsolete; or ii) discharging or modifying the covenant would not injure the persons benefitting from it.
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Re: Hedge planted in breach of restrictive covenant-what to

Postby Hairyloon » Tue Apr 05, 2016 11:49 am

I would look at whether the Limitation Act applies.
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Re: Hedge planted in breach of restrictive covenant-what to

Postby atticus » Tue Apr 05, 2016 1:13 pm

Stick to the simple approach. It will be quicker, cheaper, and more certainin outcome than the Lands Tribunal route.
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Re: Hedge planted in breach of restrictive covenant-what to

Postby theycantdothat » Tue Apr 05, 2016 2:14 pm

Do not even contemplate contemplating an application to discharge the covenant unless you are prepared to fork out a sum with at least four noughts at the end.

Do not bother with insurance.

Wait for the buyer's solicitor to raise the matter. The response if they do is to insist that after more than thirty years the covenant must be deemed to have been waived.

If they insist it must come down, then put a clause in the contract that you will have it removed before completion. That way you will not be landed with a property which looks odd.
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Re: Hedge planted in breach of restrictive covenant-what to

Postby dls » Tue Apr 05, 2016 8:57 pm

Do nothing unless you have to, beyond discussing it with your lawyer.
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Re: Hedge planted in breach of restrictive covenant-what to

Postby Thomas&22 » Wed Apr 06, 2016 12:08 pm

Thank you for all your responses. If it is picked up by other side and I say that I will cut it down on completion, what happens if buyer wants to keep it? Will I be forced to buy insurance? Thanks
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Re: Hedge planted in breach of restrictive covenant-what to

Postby atticus » Wed Apr 06, 2016 1:30 pm

Then make it clear they keep it at their risk not yours.
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Re: Hedge planted in breach of restrictive covenant-what to

Postby Thomas&22 » Thu Apr 07, 2016 12:12 pm

Thank you atticus.

I am struggling to see what actual injury has been caused due the planting of the hedge, especially as it could be said that the covenant ought to be regarded as obsolete as several others have planted hedges on the estate which has fundamentally changed its appearance (possibly to the better but that is a matter of choice), plus the fact that the original person(s) with the benefit of the covenant for over 30 years have not taken action.

If a person with the benefit of the covenant tried to enforce it, would they need to do it to ALL properties in breach. Plus could you avoid court action if upon receiving notification of the breach one simply cut the hedge down at that point?

Thanks
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Re: Hedge planted in breach of restrictive covenant-what to

Postby dls » Thu Apr 07, 2016 1:07 pm

If a person with the benefit of the covenant tried to enforce it, would they need to do it to ALL properties in breach.

No
Plus could you avoid court action if upon receiving notification of the breach one simply cut the hedge down at that point?

Effectively, yes
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