Chicken bald back

[Kalimna]

Greetings,

I apologise for asking this question, which I suspect has been asked several times previously, but a thorough search of the forum didn't bring up answers specific enough.

My wife and I are keen to introduce a few hens (3-4) to our garden and two young children. We live in a new build house (not quite a year old) surrounded by a field on one side, trees to the rear and a single direct neighbour. Being a new build, there is a clause in our house deeds prohibiting the keeping of chickens. So my question is this :

 

How enforceable are these clauses, and whose responsibility is it to do so?

 

A little more background. We live in central belt Scotland, so the Allotments Act won't apply (only England and Wales). Our direct neighbours are happy for us to keep chickens, as is the landowner who sold the land that the houses are built on. My understanding is that title deeds are, essentially, a contract between the house owner and the original landowner, but am happy to be corrected. I am still waiting to hear back from our council, but given the rural nature of our location I don't see that there will be a problem there. The house builder left the site about 5 months ago, so there will be no concern re: selling more houses. Our one concern is if any other neighbours complain.

 

Whilst there are obviously more issues to settle (coop choice, breed, etc), there seems little point if we can't overcome this apparent hurdle.

 

I appreciate any advice you may be able to provide. And again, I apologise if this is a frequent question.

 

Cheers,

Adam S

[DaisyAndBobby]

The restrictive covenant regarding poultry *is* binding, but it depends who applied it and if they choose to enforce it. Without seeing your deeds it's hard to say. If the restrictive covenant was entered by the original landowner and they are happy for you to have the poultry (i.e. they wouldn't enforce it) then I would say you could go ahead and get them.

 

We have the same covenant in our deeds, originally written in the 1920's. My wife is a property solicitor, so is very familiar with all this stuff, but we decided to get our two hens anyway. We did email the council to check, and they said no problems providing no noise issues and that we couldn't have a cockerel. My wife just said that in the unlikely scenario that whoever first created our deeds 90 years ago comes back and tries to enforce it, we will just deal with it then. If it means getting rid of the hens, so be it. A new build of course might have more chance of someone trying to enforce it, but again, without knowing the exact details it would be hard to say.

 

The allotment act is a grey area. As far as I'm aware, and as far as my wife's law firm advises their clients, the allotment act doesn't apply to gardens.

 

Depending on the size of your garden I would suggest staying at the lower end of your planned number, so three rather than four, but that's of course up to you. This is just to reduce the noise issues so reducing the chance of any neighbour complaints.

 

Hope the helps.

[Ain't Nobody Here]

I've no legal background so can't comment on the legal side but I would say that the most important thing is to get your neighbours onside first before you get any hens (which you've already done) - that way they will be far less likely to complain! In my experience (and reading the forum) it is pretty rare for neighbours to complain and it's usually because they are idiots rather than because the hens are a noise/smell nuisance! Gifts of eggs now and then are also a good way to keep people sweet .

 

I live in a housing estate in Edinburgh with a very small garden and houses both sides (and a very newbuild now at the back) and haven't had a complaint in 8 years so I'm sure you'll be fine!

[Kalimna]

Hello,

Many thanks for your reply. Having looked at the deeds, I don't recall any mention of who entered the chicken-specific covenant, but I suspect it was a standard inclusion for Cala. Is there a way to confirm if the covenant was requested specifically?

 

With regard to our garden size, it is about 250 sq m, so should be big enough, I think.

 

Whilst I am sure most of our neighbours would be quite happy, there is one household making a name for themselves complaining about things like children making a noise, dog houses too big, cars on pavements (at the end of a cul-de-sac) etc. The fact that they have a very yappy dog contravening another covenant makes no-nevermind. So I am keen to know where we stand should they complain (though they have no direct view into our garden).

 

 

Cheers

Adam S

[Beantree]

Covenants require a beneficiary who can demonstrate at least one good reason why they would wish to enforce it. If they can and want to, you risk losing the chickens and paying all the costs. This is not a decision to be taken lightly as all the costs (yours and theirs) could easily go above £20K. Legal insurance wouldn't help you. It may not be any of the neighbours who take action, rather the beneficiary, whoever they are. You will need to check with a barrister via a solicitor perhaps? You certainly need a copy of your land registration.

[Kalimna]

Thank you for your advice there. Please excuse my ignorance of legal terms, but what/who is meant by 'beneficiary'?

 

Cheers,

Adam

[Olly]

The beneficiary is the person in whose favour the covenant is made - if your house was sold as part of an estate, it's likely that the owners of other houses on the estate are the beneficiaries. This should be shown in the deeds where you've found the clause. If it was built, for example, on the garden belonging to another house and then sold, it would be the owner of the other house that will be the beneficiary.

 

In most cases these clauses are quite old and so the chances of anyone enforcing the covenant are quite low. However as yours is so new, they might be higher. Of course, anyone wishing to enforce the covenant would need to pay legal costs, which might put them off starting an action, but as Beantree points out you could be ordered to pay their costs. In reality it's not likely to reach that stage because they'd write to you before starting an action and then you'd stop. Incidentally they don't have to show 'a good reason' to enforce the covenant, they have to show that you've breached it.

 

I would suggest contacting the developers who sold the house to see if they would agree to waive it. There might be a fee. If the beneficiaries are the owners of the other properties then you could seek their consent. There is a 'sticky' on the forum about legal issues, if I can find it I'll post a link.

[Kalimna]

Hi Olly,

Thanks for your detailed reply. I shall give the deeds another read through and see if I can find reference to a beneficiary. I suspect it wouldn't be the other houses as it is a new estate, though I also suspect that if it is Cala, then they won't be especially helpful with regards waiving. If the original landowner is listed down as the beneficiary, then there really shouldn't be a problem as I have an email from him supporting the keeping of chickens.

I shall report back.

 

Cheers,

Adam

[Kalimna]

Hi Olly (plus others who have posted advice),

I've had another read, and tried to make some sense of the deeds. From what I can make out, the deeds were registered by 3 parties - the original landowner, the house builders and another company. There is no mention of a specific beneficiary with regard to the poultry clause, however.

 

Would I, then, be correct in assuming that all three would have to agree to enforce a clause, or could either do so separate from the others?

 

I appreciate the help given so far, and am beginning to realise more complexity than I anticipated!

 

Adam

[Beantree]

Could be they added the clause to protect the other owners, or rather make it appear that way so that they could sell? Perhaps the covenant is unenforceable, as are so many? You have two choices now Kalimna. Get legal advice which will be expensive, or get chickens and see what happens, being prepared to move them to a new home if it turns nasty.

[Kalimna]

Thanks Beantree,

That pretty much sums up the conclusion I had reached too. It's a shame really, as we are right in the country with nothing but fields on one side, trees behind us and a small estate to the front with the rest of the houses.

I also suspect the clause was added (though not necessarily by the builders, as I think this is now standard for new builds) for the reason you state.

We shall see.

 

Cheers,

Adam

[chooksRCute]

Personally, I wouldn't over worry this issue. Firstly someone has to complain...most likely objector is a neighbour who can only complain to the Council- they don't have your deeds and are unlikely to pay to see them. And they're only likely to enforce if your chickens were causing a nuisance.

If you are prepared to re-home in the event of a persistent complainant (usually for the sake of harmony) you have no need to worry about legal implications or costs as this issue would be resolved before any action can be taken. Even if someone sought legal advise and opposed you, they have an obligation to resolve any concern amicably and informally before using legal force.

[Kalimna]

Thanks for everyone's help and advice, a wee update...

 

Having decided to speak to the potentially awkward neighbours (their house is also a new build on the same estate, so would have the same deeds and would certainly look into them), they have come back today and seem quite happy for us to proceed. Which is all good news.

 

So, all we need to do now is decide upon coop and run/enclosure. Prepare yourselves for more newbie-questions-that-have-probably-been-answered-already over the next week or so.

 

Cheers,

Adam

[mullethunter]

exciting times

[Ain't Nobody Here]

Glad you can now start the exciting bit which is planning and getting actual chickens .

[Olly]

Great news, congratulations.