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Couple’s Wall-Building Plans Scotched by Restrictive Covenant

Cracked wall 2The idea that an Englishman’s home is his castle implies almost limitless freedom to do with your property as you wish. However, the reality is that restrictions often lurk in title deeds and, without legal advice, there is a real risk that you may not realise that they are there.

One case that illustrated the point concerned a private housing estate which was subject to a restrictive covenant, dating back to 1967, which forbade residents from erecting walls or fences, except as replacements for pre-existing structures.

A couple had removed an out-of-control Leylandii hedge from the boundary of their property and wished to replace it with a wall. They argued that the structure was needed to give them peace of mind and to prevent their grandchildren or dogs straying into the road. However, in reliance on the covenant, the estate’s trustees objected on the basis that the wall would harm the openness of the estate.

In arguing before the First-tier Tribunal (FTT) that the covenant should be removed or modified, the couple pointed out that the wall would only be five or six bricks in height and would not interfere with other residents’ views. They had already laid the wall’s foundations before they were constrained to stop work. They also argued that the covenant had been breached by others in the past, without objection.

In dismissing their application, however, the FTT noted the pivotal location of the couple’s home at the entrance to the estate. The covenant brought practical benefits to residents in preserving the open aspect of the estate, its soft landscaping and ultimately the saleability of their properties. The trustees had therefore acted reasonably in resisting the wall-building proposals.