Breach of covenant re use of shared driveway

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    Breach of covenant re use of shared driveway

    A settlement agreement was entered into with the previous neighbours after a dispute over the driveway that serves 2 properties. The long lease to which that agreement applies is now held by a company representing the flat owners (including me) in the main building. The "problem" neighbours sold the house - and new "problem" neighbours moved in and were in breach of the parking covenants from day 1.

    All efforts to get these new neighbours to abide by the details of the covenants have failed. This included a notice of breach from the company at a fairly early stage when matters had become serious. My solicitor's input did get them to stop trespassing, although this was accidental as he was outside his specific remit when he raised the issue of trespass with them. Equally "accidentally, in my pre-meeting with him before a "resolution" meeting with the neighbours he pointed out that the agreement does not give the neighbours permission to park a tenant's car on the driveway. That permission was granted to the previous owners and to their successors in title and the only implied permission relates to visitors (in the clause where the neighbours are required to ensure that neither they nor their visitors park anywhere other than in their permitted area).

    We are now at a sort of stalemate and the neighbours are continuing to park in breach of the detailed covenants but in such a way that there is not substantial interference so the company/I seem to have no scope to take this forward legally.

    Having been through all of this before and having "paid" dearly, in all ways, for an agreement which has been ignored and reinterpreted by the new owners to their advantage, I'm reluctant to spend a fortune on further legal advice to find that another provision simply doesn't mean what it says and can be ignored at will. However, I anticipate the property will change hands in the near future and I don't want to have to go through this again (I haven't mentioned the anti social behaviour, which fortunately now seems to have stopped) with either the property being rented to multiple tenants or changing hands and continuing as a mutltiple occupancy residence. The tenant's car is the main reason why the specific breaches have taken place as the owner/occupier rents 2 rooms out and wants to park his car and his tenant's car so that each car can move in and out without the other car having to be moved - not easy/possible if all of the covenants are complied with.

    Does anyone have a view as to whether the owners can simply transfer a right to park to a tenant (who is neither an owner nor a visitor) or whether this is a covenant that can be - perhaps - enforced at the First Tier Tribunal? Or somewhere else?

    The least I'm expecting the company - that should enforce all of the leases and all of the covenants - to do is to issue a new notice of breach so that any future prospective owner should be warned of the covenants - even if the company does nothing to enforce that breach notice. Yes, I'm part of that company but I only have 1 vote.

    I'd be grateful for any sensible advice.

    #2
    Originally posted by EmmaHewitt57 View Post
    Does anyone have a view as to whether the owners can simply transfer a right to park to a tenant (who is neither an owner nor a visitor) or whether this is a covenant that can be - perhaps - enforced at the First Tier Tribunal? Or somewhere else?
    This is really confusing but I am taking it that the above gets to the crux. the answer to that is clearly "yes they can". If a lessee has a right to do something then I cannot see why you think that this right should not also be held by a subtenant of that lessee (unless the lease specifically says that subtenants have different rights with regard to the demise).

    When you say parking "covenants" are you referring to something that is actually in the lease, or some sort of private settlement arrangement?

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      #3
      The settlement agreements defines the parties to it, it's not a lease and the parties who have been granted permission to use the driveway are not lessees. They are the owners of the subsidiary property (freehold), and as defined in the agreement their successors in title.

      When the agreement was drawn up the owners of the property were a married couple and there was no anticipation that the property would be owned by someone who let it out. There is nothing to prevent it from being let or rooms in it let - but the legal agreement is not a lease and the permissions were only granted to the owners of that property (and their successors in title) by the owner of the driveway which is part of land and buildings (the main house) held under a long lease.

      My solicitor's view was that this definition prevented the owners from allowing a tenant to park there. I'm asking the question as to whether this will be capable of being treated as a breach of covenant based on my recent experience of non-enforceable covenants in what is a very recent agreement.

      There are covenants in leases and not in leases - the covenants I'm referring to are in the new settlement agreement.

      I hope that helps.

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