- February 17, 2015
- Posted by: Josiah Hincks Solicitors
- Category: Property Law Updates
Housing estate neighbours, who fell out bitterly after some of them extended their gardens onto amenity land which had for years been used for communal recreation, have been urged not to let their dispute escalate into a Dickensian saga.
The case centred on a small estate of 40 homes built in the 1970s. The title deeds to the properties contained a restrictive covenant which stipulated that the amenity land was for the communal use of all residents and which forbade construction of any walls, fences or other obstructions upon it. The owners of five of the homes had nevertheless put up fences which enclosed part of the land.
In applying to the Upper Tribunal (UT) to lift the restrictive covenant, the owners pointed out that they had obtained planning permission to erect their fences, which did not obstruct any estate footpaths. They argued, amongst other things, that the land had been in an overgrown and neglected state and that objections were only raised after they went to ‘great expense’ in extending their gardens.
In dismissing their application, however, the UT noted that the erection of the fences could be viewed as ‘the thin end of the wedge’, encouraging others to do the same. Whilst expressing sympathy for the owners, it found that the restrictive covenant was not obsolete and that maintaining the amenity land as open space for communal use brought ‘practical benefits’ to all the residents of the estate.
In a reference to Charles Dickens’ novel, Bleak House, and its theme of never-ending litigation, the UT concluded: “It is hoped that the parties come to a voluntary compromise to avoid replicating Jarndyce v Jarndyce.”