Wake Smith wins modification of freehold restrictive covenant on conservatory case
Conservatories are a common feature of houses in many residential areas, especially as they may not need planning permission.
However, there is always the possibility of a freehold restrictive covenant preventing the development.
Wake Smith Solicitors recently successfully won a legal battle in Upper Tribunal (Lands Chamber) which meant an already existing unfinished conservatory in Nottinghamshire could be modified and completed, even though a neighbour had a covenant preventing any alteration without their consent.
In the tribunal case Anthony v Hardy, Barrister Sam Healey successfully represented the Anthonys, instructed by experienced property litigator Liz Shaw from Wake Smith. The tribunal judge ruled in favour of the applicants and allowed a modification of the covenant.
Liz Shaw, Joint Managing Director and Head of Litigation at Wake Smith, looks at the details of the case.
The case details
Christopher and Lucy Anthony own and live in Welbeck House, a modern detached home in Retford.
They wanted to install a large door or doors in the rear wall of their garage to allow them to bring large items such as garden furniture into their garden.
They applied to discharge or modify a covenant held by their neighbours Christopher and Patricia Hardy that prevented them from completing the construction of a conservatory attached to the rear of their house.
The Hardys live next door in Roche House and have the benefit of the covenant which prevents alterations and additions to Welbeck House. They objected to both the conservatory and the works to widen the doorway.
The Anthonys argued the discharge of the covenant or its modification to allow the completion of the conservatory and the creation of a large opening and door in the rear wall of the garage. They said their proposed alterations were modest in nature, objectively reasonable and would have no real impact on Mr and Mrs Hardy, or any of their neighbours.
Mr and Mrs Hardy argued if the covenant was modified the shape of Welbeck House will change and the staggered positioning would be altered that was detrimental to them. They claimed the negative impact on the conservatory on Roche House and said the view from the window in their utility room would be harmed, with the boundary between the two houses becoming overly built up.
After hearing information from an expert witness and discussions on issues including openness at the boundary, light, privacy, sense of space and views, the tribunal judge concluded the restrictive covenant could be modified.
Liz added: “The case provides a good summary of the applicable principles where an owner seeks the removal of a covenant under s84(1)(aa) LPA 1925.”
For the full case details click here https://lnkd.in/gZXjdpMS
What to do next?
Professional advice should always be sought before taking any action.
For further advice on freehold restrictive covenants contact Elizabeth Shaw, Joint Managing Director at Wake Smith Solicitors on 0114 224 2041 or email [email protected]
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