wording of our covenant.

Discussion in 'Motorhome Chat' started by Jonny5, Apr 17, 2018.

  1. Jonny5

    Jonny5 Funster

    Joined:
    Apr 9, 2018
    Messages:
    31
    Ratings:
    +66
    I am planning on putting our motorhome into storage throughout the majority of the year when we are not using it however there will be spells where it may spend time between our trips away in it on our drive for convenience reasons.
    One set of our neighbours have been really chilled out and taken the attitude of live and let live and have talked to us about it and what plans we have for it.
    Sadly the other set of neighbours are Dickenses and he has just sauntered over and stated it has to go due to the fact there is a covenant on the area.
    I do plan to move it and should he have been polite and reasonable he would have found that out.

    The wording of the covenant is as follows.....
    "No hut tent or caravan or house on wheels or other chattel (except a shed for the purpose of building in the land) shall be allowed to remain on the land hereby transferred or any part thereof"

    So can anyone with Direct or Legal experience tell me if I can have it here temporarilly or if this statement is direct enough to apply to a motorhome?
     
  2. scousebird

    scousebird Funster

    Joined:
    Apr 18, 2012
    Messages:
    17,989
    Location:
    South East Kent
    Ratings:
    +68,921
  3. Silver-Fox

    Silver-Fox Funster

    Joined:
    Sep 5, 2014
    Messages:
    3,263
    Location:
    Cheltenham Spa
    Ratings:
    +7,552
    Has this not been covered before?
    From what I recall it’s a civil matter and matey who isn’t happy would need to take legal action.
    Or just park it on the road :)
     
    • Like it Like it x 3
  4. old-mo

    old-mo Funster Extra Special Life Member

    Joined:
    Oct 16, 2008
    Messages:
    14,289
    Location:
    Haughton, Stafford..
    Ratings:
    +69,659
    As long as it is taxed/MOT`d and insured and you do not live on a private road..

    Leave it on the road... (y)

    Silver fox beat me to it..
     
    • Like it Like it x 2
  5. Coastal Cruiser.

    Coastal Cruiser. Funster

    Joined:
    Apr 17, 2016
    Messages:
    644
    Location:
    Chichester
    Ratings:
    +5,503
    I am sure I have seen somewhere that the only people who can enforce a covenant is the ones that put it on, if the developer is no more than I didn’t think they applied.
    Probably wrong though!
     
    • Like it Like it x 1
    • Nice One! Nice One! x 1
  6. Pausim

    Pausim Funster

    Joined:
    May 7, 2016
    Messages:
    684
    Location:
    Poole, Dorset
    Ratings:
    +952
    I think covenants, the benefit and the responsibilities pass with the land. This means that neighbours can enforce covenants.
     
    • Informative Informative x 1
  7. RowleyBirkinQC

    RowleyBirkinQC Funster

    Joined:
    Sep 20, 2014
    Messages:
    1,179
    Location:
    Dazed & Confused
    Ratings:
    +12,932
    And you can buy indemnity insurance to cover you should someone try and enforce the covenant via legal channels. How much use it would be I know not, but I have one just in case, as although the vendor assured us no such covenant existed on our house, it transpired not to be the case (only highlighted by conveyancer late in proceedings despite my requesting to be informed as early as possible due to MH).
     
    • Like it Like it x 1
  8. MH 55 FUN

    MH 55 FUN Funster

    Joined:
    Feb 18, 2016
    Messages:
    2,982
    Location:
    Rural South West Wales.
    Ratings:
    +7,484
    https://www.mylawyer.co.uk/law-a-A76052D76388/?A76052D76388=

    What happens if I breach a restrictive covenant?
    If you buy a property that is subject to a restrictive covenant you will be bound by its terms, unless it is not reasonable or practical.


    I would suggest that parking ones' Moho on ones' own land is reasonable, however others may not.
     
    Last edited: Apr 17, 2018
    • Like it Like it x 1
    • Informative Informative x 1
  9. NickNic

    NickNic Funster Life Member

    Joined:
    Jan 14, 2014
    Messages:
    7,966
    Location:
    Kettering
    Ratings:
    +20,658
    Any covenant can only ever be enforced by the person who put it in place. In the case of housing developments they are normally put in place by the developers to keep their site looking pretty whilst there are plots to sell. After that they don't care.


    Nope. They don't and they can't. (y) Been through this many times.

    If the neighbours wanted to try and get it enforced their only possible route is to take the person or organisation that originally put the covenant in place to the High Court and apply for an order requiring them to take you to court to enforce their covenant. Whilst technically possible there are two big problems with this: 1. It's hideously expensive, well out of reach of the average home owner and 2. If the company that put the covenant in place is no longer trading there's nobody to take to court so although the covenant will still appear on searches and technically remain in place it is completely unenforceable by anyone.
     
    • Informative Informative x 6
    • Like it Like it x 3
    • Nice One! Nice One! x 2
  10. MH 55 FUN

    MH 55 FUN Funster

    Joined:
    Feb 18, 2016
    Messages:
    2,982
    Location:
    Rural South West Wales.
    Ratings:
    +7,484
    @NickNic

    Is this info' incorrect ?

    Under land law, restrictive covenants ‘run with the land’. This means they bind all successive purchasers/owners of the property (unless the terms of the covenant state otherwise). It is possible for a restrictive covenant to be discharged by agreement with the person who has the benefit of the restrictive covenant. If necessary, an application can be made to the Lands Tribunal for an order discharging or modifying the restriction; for instance, if the restrictive covenant is interfering with the use of the land.
     
  11. scotjimland

    scotjimland Funster Life Member

    Joined:
    Jul 25, 2007
    Messages:
    30,581
    Location:
    .
    Ratings:
    +32,197
    don't know about covenants ..

    but for legal definition, motorhome is a caravan,

    on V5c it is registered as a " motor caravan "
     
  12. Abacist

    Abacist Funster Life Member

    Joined:
    Oct 15, 2013
    Messages:
    1,653
    Location:
    Devon
    Ratings:
    +2,835
    My father enforced a covenant against his Neighbour many years ago and they had to remove their caravan from their drive!
     
    • Informative Informative x 1
    • Love it Love it x 1
  13. MH 55 FUN

    MH 55 FUN Funster

    Joined:
    Feb 18, 2016
    Messages:
    2,982
    Location:
    Rural South West Wales.
    Ratings:
    +7,484
  14. Borderland

    Borderland Funster

    Joined:
    Nov 5, 2014
    Messages:
    631
    Location:
    Borders
    Ratings:
    +3,270
    You may find that there are other conditions in the covenant that are being ignored such as siting of tv aerials, satellite dishes, building of extensions without covenant holders permission etc. If that is the case then there could be a lot of home owners breaching the covenant so ask your neighbour what he is going to do about them.
     
    • Like it Like it x 3
  15. TheBig1

    TheBig1 Funster Life Member

    Joined:
    Nov 27, 2011
    Messages:
    9,534
    Location:
    Dorset
    Ratings:
    +16,831
    we have been through this and the covenant could not be enforced. remind the dick of a neighbour any dispute between neighbours must be disclosed if they ever sell and will be detrimental on their property value
     
    • Like it Like it x 9
    • Nice One! Nice One! x 4
  16. joka250

    joka250 Funster

    Joined:
    Jul 29, 2017
    Messages:
    409
    Location:
    South Leicestershire
    Ratings:
    +566
    And indeed to the original poster.
     
  17. Kirsten

    Kirsten Funster

    Joined:
    May 5, 2015
    Messages:
    166
    Location:
    Stratford on Avon
    Ratings:
    +512
    Hope you get it sorted amicably- never understood why people object to motorhome parked outside when no covenant exists re the number of cars or skips ( building work can drag on) tradesman vans etc .Are they saying you can’t park it there ever not even to to load it?
     
  18. Jimbohorlicks

    Jimbohorlicks Funster

    Joined:
    Sep 3, 2012
    Messages:
    1,290
    Location:
    Cheshire
    Ratings:
    +2,440
    your covenant states that they shall not remain on the land, your van is only there on a temporary basis in between storage etc, tell your neighbour that. If he wants to take it further it will cost him. Also point out that you could legally park your MH in front of his property on the public highway if you so wished.(y)
     
    • Nice One! Nice One! x 4
    • Like it Like it x 1
  19. MH 55 FUN

    MH 55 FUN Funster

    Joined:
    Feb 18, 2016
    Messages:
    2,982
    Location:
    Rural South West Wales.
    Ratings:
    +7,484
    Enforceability of Covenants in Equity / Common law.
    If a covenant cannot be enforced under common law rules then it may still be enforceable under equitable rules. As with common law rules, where the original covenanting parties have parted with their respective land it will have to be shown that both the benefit and the burden has passed to their respective successors in title. Unlike common law, it was established in the case of Tulk v Moxhay [1848] that the burden of a covenant can run in equity provided five conditions are met:

    1. The covenant must be negative (restrictive). This means that it must prevent an action rather than compel an action to be performed. Sometimes a positive covenant will be phrased negatively or vice versa, for example “to keep the area between the building line and the highway open and unbuilt upon” is worded positively but is really saying “do not build on the land between the building line and the highway”. Conversely, a covenant “not to allow the wall between the land and the highway to fall into disrepair” is really a covenant “to repair and maintain the wall between the land and the highway”. The burden of positive covenants does not, as a general rule, run either at common law or in equity, though see the exceptions above in relation to common law.

    2. There must be a benefited and a burdened land and the two must be “reasonably close together” – close enough for the benefited land to be genuinely adversely affected by a breach.

    3. The covenant must actually benefit the benefiting land. In Re Gadd’s Land Transfer [1966] it was stated that a “benefit” must be “something affecting either the value of the land or the method of its occupation or enjoyment”. This is important because many old covenants cease to have any material benefit as the nature and character of the surrounding area changes over time.

    4. It must be the original parties’ intention for the burden to run with the land. Unless the wording of the deed contains an express contrary intention it will be assumed that the burden was intended to run. This is confirmed by s79(1) of the Law of Property Act 1925.

    5. The purchaser of the burdened land must have had notice of the covenant before buying the land. In unregistered land, if the covenant was created after 1 January 1926 then in order to be binding it would need to have been registered as a Class D(ii) land charge. If the covenant is registered in this way then the purchaser is deemed to be aware of it even if he did not actually search the Land Charges register prior to his purchase (s198 Law of Property Act 1925). Conversely, if it is not registered then he will not be bound even if he actually knew of the covenant (s199 Law of Property Act 1925). For covenants relating to unregistered land created before 1 January 1926 a purchaser of burdened land will be bound unless he is an arm’s length purchaser for value (meaning he is not connected to the seller and pays more than a nominal sum for the land) and he has no notice of the covenant. Notice can either be express, i.e. he can be told, implied, i.e. if it is or should be obvious from a reasonably careful inspection of the land or imputed, i.e. if his legal advisor or surveyor is aware, even if the information is not passed on to him. In registered land, a covenant must be protected by the entry of a notice in the register to be binding.

    The benefit of a covenant will run in equity provided it actually benefits the land and it was intended by the original parties for the benefit to run. Intention can be either express (i.e. the wording of the covenant states that it is intended to benefit successors of the original covenantee), or since 1 January 1926 by statute under s78 of the Law of Property Act 1925.
    There are two basic systems of law in England & Wales – common law and equity. The Judicature Acts of the late nineteenth century basically merged the two systems but there are still some differences. In respect of covenants, for them to be enforceable, both the benefit and burden must run in common law or both must run in equity. So if the benefit runs in common law but the burden only runs in equity (or vice versa) the covenant will not be enforceable.

    In order for the benefit of a covenant to pass at common law, four requirements must be satisfied

    1. The covenant must “touch and concern” the land of the covenantee. This means that the covenant must be capable of benefiting any owner of the land and not just be a personal benefit to the current owner.

    2. The covenantee must own the legal estate in the land to be benefited when the covenant is made. In other words, the original covenantee must have actually owned the land that benefits when the covenant was made – if for example he had only contracted to buy the land then it will not be enforceable. Usually new covenants are contained in the same deed that transfers ownership to the covenantee which deals with this condition.

    3. The successor of the covenantee must have a legal estate. This just means that a future owner looking to take the benefit of a covenant must be the legal owner of the land which benefits.

    4.The original parties must have intended that the covenant should run with the covenantee’s land. Not all covenants are intended to benefit future owners, some are purely personal. The intentions of the parties can usually be ascertained from the words used to create a covenant, for example words such as “the covenantor covenants with the covenantee his successors in title and those deriving title under him” confirm that it is intended that the benefit should run. Section 78(1) of the Law of Property Act 1925 implies similar words into any covenant created after the act came into force on 1 Januarym1926 with the effect that it is deemed that the benefit was intended to run. So pre-1926 a covenant has to explicitly say that it is intended to benefit future owners whereas from 1926 onward this is implied unless the wording of the covenant expressly states that it should not, for example by stating that the operation of s78(1) is excluded.

    The burden of a covenant will not run at common law meaning that future owners of the burdened land will not be bound however the original covenantor will remain liable even after he has parted with his land. This rule was established in the case of Austerberry v Oldham Corporation [1885]. There are several exceptions:

    1. A chain of indemnity covenants can be created. Where a piece of land burdened by covenants is sold it is usual for the seller to require that a clause be included in the transfer to the buyer whereby the buyer agrees to indemnify the seller against any claims for breach of any of the covenants. The owner of the land which has the benefit of the covenant can still sue the original covenantor for breach of contract however the original covenantor can then sue his buyer on the indemnity. If that buyer has since sold the property and obtained an indemnity from his purchaser then he can sue him and so on down the chain of ownership. In theory a chain of indemnity covenants can continue indefinitely however in practice it will come to an end either on the disappearance of the original covenantor or where the chain is broken (by a transfer taking place that does not incorporate an indemnity covenant).

    2. The rule in Halsall v Brizell [1957], also known as the doctrine of mutual benefit and burden, states that a person cannot continue take the benefit of a deed without subscribing to the obligations under it. What this means is that if a deed grants the owner of a property the right to, for example, use a private road but the same deed also contains a covenant to contribute toward the cost of the upkeep of the road then the owner cannot exercise the right to use the road without contributing to its upkeep.

    3. The burden of covenants contained in a lease will generally run therefore granting a lease out of the freehold title instead of simply conveying the freehold title is a useful way to ensure the covenants remain enforceable.

    4. An estate rentcharge can be imposed, whereby the owner of the property is obliged to contribute an annual sum toward the repair and maintenance of shared facilities. If this is coupled with a right of re-entry for non-payment this ensures the covenant to contribute should not be breached.
     
    • Informative Informative x 4
  20. Jim

    Jim Ringleader

    Joined:
    Jul 19, 2007
    Messages:
    28,906
    Location:
    Sutton on Sea
    Ratings:
    +99,324
    Please don't start posts like this as it can put people off of asking. Cheers (y) Of course its been covered, a few times, but something new or new life experiences are revealed/turn up each and every time (y)
     
    • Like it Like it x 12
    • Nice One! Nice One! x 2

Share This Page

  1. This site uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
    By continuing to use this site, you are consenting to our use of cookies.
    Dismiss Notice