Theoretical question - eaves over restrictive covenant area

[Moonshine]

I have been looking at a planning application near me (nothing to do with me), that there is a area of land on the plot subject to a restrictive convenient not to erect any building.

 

The proposed house is laid out with the walls right on the restrictive convenient boundary line, with the eaves of the house protruding 0.5m over the restrictive convenient boundary line for the length of the house (10m+).

 

Would this not be a breach of the restrictive convenient?

Edited December 12, 2018 by Moonshine

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[Mr Punter]

It may be.  Do the owners of the other land have the benefit of the covenant?  If the house has been granted consent without any objections from the other landowner, it may be difficult to enforce.

[Moonshine]

My interest is it was mentioned in a recent conversation, that it seems a grey area to me (also i am nosey), and i just assumed that the wording "not to erect any building" would include overhanging structures.

 

The area of land is a old part of a bigger house's garden, and the covenant is relatively recent in date and the benefit is a named person, so i presume that it would be the owner (probably changed) of the house the garden once belonged to.

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[HerbJ]

Not sure of it breaches the covenant but if this separate plot of land is owned by someone else, it would be trespass. See the  famous old case Truckell v Stock [1957] 1 All ER 74, [1957] 1 WLR 161, 168 EG 668

. Lord Denning's judgement in the Court of Appeal in the Court of Appeal is very short and clear.

 

I used this case to have a troublesome neighbour's gas flue removed, when we were having problems with our flat Management Company in Torquay.

[Moonshine]

4 minutes ago, the_r_sole said:

 

If the overhanging building isn't erected on the restricted area, it isn't erected on the restricted area, so it really comes down to the exact wording of the covenant and how enforceable it is

 

interesting, so if the wording wasn't strongly written to include overhanging structures, not erected on the land could mean that someone could build a massive canter-levered structure over the land as long as it wasn't erected off it?

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[HerbJ]

No, you cannot build in the air space above a piece of land you do not own - that is  trespass. Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd , the oversailing boom of a tower crane was held to be a trespass over the land over which it overhung.

 

But not sure about the ownership of the two pieces of land? If the two pieces of adjacent land are in separate ownership,  the new  build could be stopped because of the trespass of any overhanging element of the new build on the adjacent land with the benefit of the covenant. They would not have to enforce the covenant, to take action for the trespass. This would be the easiest way to deal with the problem....

 

You can sell/lease  the air space above a piece of land you own without giving up title to your  land. Developers in New York have built massive residential and commercial developments above the railway lines/property  in Manhattan - it makes sense where space is land is at a premium!

Edited December 12, 2018 by HerbJ

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[ProDave]

This sounds like a new house near here.  Someone bought an old bungalow to knock down and rebuild.  It turns out at some point the owner of the bungalow had enlarged the garden by buying part of a field and the farmer sold it with an uplift clause if it was ever to be built on.

 

The replacement house sits on the original garden, but he has built the garage on the ex field with the uplift clause.  So far apart from some huffing and puffing the farmer has done nothing to chase this covenant.  But I would expect it to be an issue if he ever tried to sell the house.