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… PROTECTIVE COVENANTS - Stage 1…
THE Purchaser acknowledges and agrees with the Vendor that each lot in the Vendor's subdivision forms part of a development which is intended to be established as a modern and well designed subdivision and it is desirable that supervision and control be exercised by the Vendor for the protection of and in the interests of all Purchasers in relation to the nature and type of construction to be permitted in the subdivision. In recognition of these objects the Purchaser for his lot and for the benefit of all other residential lots comprised in the subdivision DOES HEREBY AGREE with the Vendor and will covenant whether by deed, transfer or otherwise as required, with the Vendor, or such other person or persons as are nominated by the Vendor (including its successors in title) for the Purchaser and his executors, administrators, assigns and successors in title in relation to the lot purchased as follows:-
(i) Not to erect any building other than a new residential home. At the sole discretion of the Vendor, a pre-
built transportable or relocatable house may be approved.
(ii) Not to erect or allow to be erected a dwellinghouse of a floor area less than 100 square metres and if of
a floor area of less than 140 square metres to have any such plans and specifications approved in writing by the Vendor prior to application for a building consent for such a dwellinghouse. (The floor area measurement to be exclusive of garage, carports, decking, breezeways and roof overhang). In determining whether or not to approve the plans and specifications, the Vendor will take into account the appearance of the proposed dwelling in relation to the appearance of other dwellings in the subdivision to the intent there should be a range of style, design and appearance of dwellings within the subdivision. Any Vendor approval shall be at the sole discretion of the Vendor.
(iii) To construct any dwellinghouse with a minimum of 60% of the non-glazed exterior cladding of the
dwelling consisting of any of the following materials: kiln fired or concrete brick, stucco textured finish, stone, timber or solid weatherboard at least 16mm thick with a maximum finished width not exceeding 180mm, or any other exterior cladding material for which the Purchaser has first obtained the Vendor's consent in writing. Any dwelling with an exterior finish in the form of flat cladding, concrete block, poured concrete or similar shall have the surface textured at the time of construction in such a manner as to fully cover the base material. Where a residence has a basement, exposed subfloors, framing and/or decks, the exposed areas shall be underclad or sheath-lined out in permanent materials in conformity with the main parts of the residence.
(iv) The final colour of the exterior cladding of those areas of the dwellinghouse primarily facing all street
frontages is to be of subdued or non-vibrant colours unless otherwise approved in writing by the Vendor. The final colour and any Vendor approval thereof shall be at the sole discretion of the Vendor.
(v) To construct a minimum of one garage which is to be attached to the dwellinghouse unless approved
otherwise by the Vendor. Any Vendor approval shall be at the sole discretion of the Vendor. The garage must be constructed in the same architectural style with the same cladding materials as the dwellinghouse and comply with local authority requirements.
(vi) Not to use any metal clad roof that has not been factory prepainted or any roofing material, which will
create a glare offensive to adjoining property owners.
(vii) Not to erect any more than one single family dwellinghouse on the land nor subdivide the land further.
(viii) Not to construct any road on any part of the said land which provides access to any other land adjoining
(ix) To complete any building (including exterior painting and decorating) within 9 months of
commencement of laying down the foundations for such building and further within that 9 month period construct in a proper and tradesmanlike manner a driveway, or vehicle access in a permanent continuous surfacing of concrete, concrete block, brick paving, or sealing. Lawns are to be laid and landscaping completed within 6 months of the completion of the dwellinghouse.
(x) Not to bring on to or to allow to remain on the land or any internal road of the subdivision any temporary
building, garden shed, caravan, trade vehicle or other equipment or materials or machinery unless garaged or adequately screened so as not to be highly visible from the road and neighbouring properties, so as to preserve the amenities of the neighbourhood and also to prevent noise likely to cause offence to residents in the subdivision. No recreational or commercial vehicles or trailers are to be regularly located on the street or footpath nor on that area between the front boundary of the land and the dwelling.
(xi) Not to erect or allow to be erected any fence constructed of corrugated iron or post and wire. All fences
and retaining structures are to comply with Local Authority requirements, however, no fence (excluding the Vendor’s subdivisional walls) shall exceed 1 metre in height above the Vendor’s finished ground level of the property beyond the front building alignment of the dwelling, or exceed 1.8 metres in height elsewhere on the property, unless prior approval of the Vendor is sought.
(xii) Not to erect or place any building or structure whether permanent or temporary nor plant any tree or
shrub on any of lots 26 to 44 (inclusive) for which the maximum height would exceed 5 metres above the Vendor’s finished ground level measured at the highest point of the front boundary of the said lot, provided that television aerials, chimneys and hotwater overflow pipes shall be excluded in assessing the maximum height of any building or structure.
(xiii) Not to alter, interfere with, paint, add to or otherwise change the entrance walls or their fittings or
attachments including any hedges apart from the maintenance thereof, without the prior approval of the Vendor.
(xiv) Not to permit the land to be occupied or used as a residence unless the appropriate buildings on the
property have been substantially completed in accordance with the covenants and Local Authority Compliance Certificates have been issued for the dwelling.
(xv) Not to carry out any maintenance or repair work on any motor vehicle, boat, vehicle or apparatus on the
(xvi) Not to permit the land or dwelling to be used on a commercial basis unless approved in accordance
(xvii) Not to display more than one advertisement, sign or hoarding of a commercial nature measuring in
excess of 900mm x 600mm on any part of the land or dwellinghouse. Any such advertisement, sign or hoardings are to comply with Local Authority ordinances and in the event is in excess of 900mm x 600mm or more than one is to be erected, this should first be approved in writing by the Vendor.
(xviii) Not to carry out landscaping on the road frontage of the Local Authority owned land except in
accordance with the general overall landscaping plan prepared by the Vendor or, with prior written approval of the Vendor.
(xix) Not to bring on to raise, breed or keep any animals, poultry or livestock on the land or buildings except
to keep a maximum of three animals limited to dogs or cats unless prior written approval is given by the Vendor. These animals shall not be allowed to become a nuisance to others in the subdivision and all dogs shall be controlled so as to prevent them from roaming the subdivision at will.
(xx) To keep and maintain in a neat and tidy condition and prevent from becoming unsightly, the section and
the Local Authority owned road frontage of the land from the possession date.
(xxi) Not to allow on any of the lots any buildings, structures or fencing to become dilapidated or to fall into
Not to construct any clothesline or letterbox except such clothesline or letterbox as may be aesthetically sensitive in terms of design and location, siting any clothesline in such a way as to not be highly visible from the street and siting any letterbox adjacent to but not in the road reserve. The
design, location and siting of such clotheslines and letterboxes to be at the sole discretion of the Vendor.
(xxiii) To enhance the quality and appearance of attachments to the building (including but not necessarily
limited to television antenna and solar hot water panels) and to construct such attachments to be discreetly integrated with the dwelling so they are not highly visible from any primarily facing street frontages.
(xxiv) To ensure that in any construction, due allowance is made for adequate current and future drainage of
all excess stormwater from the residential lot, the Purchaser remaining responsible for all costs, claims or demands for any remedial action undertaken for any breach hereof.
(xxv) To ensure that no discharge from the residential lot of a soluble or insoluble nature is detrimental to the
water quality in the stormwater network. The Purchaser is responsible for all costs, claims or demands for any remedial action undertaken for any breach thereof.
(xxvi) The use of adjacent or abutting land and footpaths for access, stockpiling and storage of materials and
dumping of rubbish is strictly prohibited, provided however, that the Purchaser or the Purchaser’s agents or invitees may have access across any other site upon obtaining written approval from the Vendor in which case the Purchaser shall ensure that in any construction, due allowance is made for the protection of the footpaths and Local Authority owned road frontage by way of placing sand or other Vendor approved material over those areas where vehicular traffic is to run. The Purchaser shall re-instate, replace or be responsible for all costs arising from damage to the landscape, roading, footpaths, kerbs, concrete or other structures in the subdivision arising from the Purchasers use of the land directly or indirectly through the Purchasers actions or those of the Purchasers agents or invitees.
(xxvii) To pay for construction and maintenance of any fence constructed on the boundary of any adjoining
land owned by the Local Authority and not to seek contribution from the Vendor or Local Authority for such construction or maintenance cost.
If there should be any breach or non-observance of any of the foregoing covenants and without prejudice to any other liability which the Purchaser may have to any person having the benefit of this covenant, the Purchaser will upon written demand being made by the Vendor or any of the registered proprietors of the Lots: (a)
pay to the person making such demands as liquidated damages the sum of $200 per day for
every day that such breach or non-observance continues after the date upon which written
remove or cause to be removed from the land any secondhand or used dwellinghouse, garage,
carport, building, or other structure erected or placed on the land in breach of non-observance of
replace any building materials used in breach or non-observance of the foregoing covenants
cease any activity in breach of these covenants.
These covenants shall run with the land and shall be at the discretion of the Vendor incorporated in any Memorandum of Transfer to the Purchaser executed pursuant to an Agreement for Sale and Purchase or in the alternative the covenants may be added to the title to each lot by the Vendor, prior to the title date AND THE PURCHASER DOTH HEREBY COVENANT with the Vendor that if the Purchaser shall transfer, assign or otherwise dispose of his interest in the land then he shall make such transfer, assignment or disposition subject to the provisions of the clause in the Agreement for Sale and Purchase and shall procure from the transferee or assignee a Deed of Covenant in favour of the Vendor whereby such Purchaser or assignee undertakes to fulfil the Purchaser's obligations under the clause in the Agreement for Sales and Purchase.
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T R I B U N A L S U P R E M O Sala de lo Contencioso-Administrativo Sección: CUARTA S E N T E N C I A Fecha de Sentencia: 27/03/2012 RECURSO CASACION Recurso Núm.: 6418 / 2009 Fallo/Acuerdo: Sentencia Desestimatoria Votación: 28/02/2012 Procedencia: T.S.J.MADRID CON/AD SEC.9 Ponente: Excmo. Sr. D. Segundo Menéndez Pérez Secre