There is little point in lawyers giving advice if their clients do not heed it, and that is particularly so when it comes to the intricate art of conveyancing. In one case recently reviewed by David Watson, a young couple had cause to regret not paying any particular attention to legal restrictions on their ability to change the layout of their home and garden.
Before purchasing their home in a recently constructed cul-de-sac, the couple were made aware during the conveyancing process of restrictive covenants in the property’s title deeds. The covenants required parts of their garden to be kept permanently grassed and forbade the erection of any structure on the property’s allocated parking space or forward of its front elevation.
With the benefit of hindsight, they accepted that they had been naïve in paying scant attention to those restrictions. They succeeded in obtaining planning permission to build a single-storey extension to the house and to reconfigure a small front lawn into a parking area – but they were in for an unpleasant surprise.
It was only after their neighbours objected to their proposals that they realised that neither project could proceed whilst the restrictions remained in place. They applied to the Upper Tribunal (UT) under the Law of Property Act 1925 with a view to having the restrictions modified so that they could press ahead with their plans. Their neighbours, however, strongly resisted the application.
The couple pointed out that they needed the extra space for themselves, their children and possibly an elderly relative. They said that their plans had been carefully designed with their neighbours’ interests in mind. The neighbours, however, said that modifying the restrictions would create a damaging precedent in the area and would have a negative impact on the saleability of their home.
Dismissing the couple’s application, the UT rejected arguments that the restrictions were obsolete. Although the proposed extension would not overlook the neighbours’ property, it would dominate their garden, giving it a more enclosed feel. Overall, the restrictions provided a practical benefit of substantial advantage to the neighbours, who were entitled to expect that they would be maintained.
The UT expressed sympathy for the couple, who frankly accepted that they should have paid more attention to the restrictions before purchasing their home. They had throughout acted in good faith in their dealings with the objectors and other neighbours and had presented their case with restrained succinctness.
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