Comsumer Rights: 'We don't want to fix our walls'
Hedges are adequate barriers between houses so can a covenant insisting on repairs be turned over?
Sunday 20 May 2012
Q: When I bought my house there was a covenant on the lease that says we have to have a garden wall between us and our neighbours on each side and at the back. But we've been here for 15 years and our hedges have grown to make good natural barriers and the walls are crumbling. They would need to be renewed at considerable cost. Is there any way to have the covenant revoked?
A: Covenants restricting what a landowner, in this case you, can do with your property are common. The original landlord (in your case the developer or builder) imposed the covenant when selling off parts of the land to protect the value of the remaining land/plots/new homes.
Nearly every new house on an estate has these kinds of restrictions attached. Some deal with walls or fences but others might restrict the building of lofts or extensions so the people who buy the other homes on the estate will have the benefits of knowing they won't risk losing their light or the view. These kinds of covenants are about protecting the value of the remaining land by protecting the benefit to those other landowners.
In most cases where the covenant deals with walls or other barriers the idea is that all the buyers sign up to say that they will keep their walls in a good state of repair and in place so that everyone else benefits by having clear demarcation of their boundaries are. However, as the years go by the covenant is often breached either by people ignoring it or by others who don't realise they exist. It becomes harder over time to enforce covenants of this sort.
The law around restrictive covenants is very complicated, but if all the neighbours are in agreement and no one is adamant that they must have walls it should be possible to have the covenant lifted. Share the costs of the legal advice you need and make sure you choose a solicitor with experience of restrictive covenants.
In some cases you can apply to the Upper Tribunal (Lands Chamber) to cancel the restriction. Another way around the problem is a single-premium indemnity policy which the seller usually pays for but the buyer can make a claim on if problems later arise.
If a restrictive covenant has been made on land, for the benefit of the wider community, getting that lifted will be much more difficult. There will be a whole range of views to consider. Some will want the benefit to remain; some will feel the benefit no longer outweighs any gains by changing the land use. In the end a court may be asked to make a decision.
Q: My parents recently sold their home because of illness and are now renting. I asked if they would like to move in with me and my partner.
We found a lovely three-storey Victorian semi big enough to accommodate all of us. We went to one of the big banks, explained the situation and it was fully aware of what we wanted to do.
I passed all the credit checks and it arranged a valuation. It has now said, after me paying for the valuation and a full structural survey, it won't lend as there are too many bedrooms (currently 11 that I want to put back to the original eight). Can you offer me any advice or help? My mother is beside herself with worry.
A: Unfortunately, the lender is free to say no to mortgage applications and what the valuer and the surveyor say in their reports will play a part in that decision. If this really is about the number of bedrooms it should have been made clear before you spent money that the bank didn't lend on properties of this size, but I suspect that's not the only reason you were turned you down. It could be more about the scale and cost of the work to put the house back the way you want it.
I know it means spending more but talk to other lenders. Make it clear how large the house is and who will be living there. Better still find a mortgage broker to help find the right mortgage for this project.
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