New rules and regulations covering the management of the common areas of the Estate were approved at the 2021 AGM, and can be found HERE
Rights and Obligations
The Holly Lodge Estate was developed in accordance with a precise scheme, the main details of which were set out in each of the Transfers by which the developers transferred the various plots to the respective purchasers. Each transfer included a schedule. A copy of the schedule as it appeared in the transfer of each house plot is with one modification set out in the Appendix to this booklet. The second half of Part ill of the Schedule contained what were described as Estate Regulations- These regulations have been amended in accordance with the power contained in the final regulation and the regulations set out in the Appendix to this booklet are the Regulations now in force having been adopted at the half yearly meeting of the plot owners held on the 26th of October 1972 in the place of those previously in force.
It is an essential part of the scheme that the roads footpaths (including the numerous cross paths giving access to the roads) grass verges and the ornamental gardens at the top of the Estate are all vested in three trustees who whilst they occupy that office are permanent members of the Estate Committee. The trustees have a normal land Certificate issued by Her Majestys Land Registry which shows that the trustees are the legal owners of those items.
There was included in the sale to each original plot owner the rights specified in Part l of the Schedule and those rights are now vested in the present owner of each plot. These rights are of such importance to everyday life on the Estate that we hardly ever think about them unless someone interferes with them and then we think their existence cannot possibly be questioned.
The first of these rights is a right of way for all purposes over the roads paths and open spaces on the Estate. A right of way over a road is a right to pass and repass over the road in order to obtain access to ones own property The nature of the right is (subject to any qualification in the document creating it) largely defined by the state of the road at the time the right was created. The roads on this estate were constructed for the use of vehicular traffic as well as pedestrians, the footpaths were intended for pedestrians and such vehicles as are intended for propulsion by pedestrian, e.g., perambulators and shopping baskets on wheels but not cycles.
The words “for the purposes” show that the right of way may be used for any lawful purpose in relation to the lawful use of the property to which the right is attached. Thus the roads may be used by trade vehicles for all purposes in relation to the use as a private dwelling house of the house standing on any house plot. It would however not be lawful for trade vehicles to use the roads on the Estate for the purpose of access to a house in connection with the carrying on of a trade in such house. Such use of the roads would constitute a trespass.
The owner of a right of way has no right to obstruct the way The owners of the roads, that is the Estate Trustees, are entitled to insist that the roads and footpaths are kept free from obstruction at all times. Likewise any person entitled to a right of way is entitled to insist that the roads and footpaths are kept free from all obstruction whether by the owners of the roads and footpaths or by another person entitled to a right of way thereover or by anyone else.
Ownership of a right of way confers the right to halt upon the road for a reasonable time for essential purposes connected with the use of the right of way but so that other lawful users of the roads and footpaths are not inconvenienced. Thus a motor vehicle may stop at the house to which the right of way is appurtenant for the purpose of picking up or setting down passengers or for loading or unloading goods provided that in so doing no one elses rights are interfered with. Ownership of a right of way does not confer the right to park upon the road, and it does not confer the right to store or deposit building materials upon the roadway nor upon the grass verge.
Plot Owner’s Rights
The other rights specified in Part I of the Schedule are a right to use the drains and sewers under the estate and a right to use the gardens at the top of the estate.
All these rights conferred on a plot owner are subject to the obligation to pay the annual rent charge, which in the case of a house plot is £2.50 per annum. The inadequacy of this rent charge in modern times is dealt with elsewhere.
Part ll of the Schedule sets out particulars of the rights which at the time of the original sale London Garden Suburbs l_imited (the Vendor) retained out of each plot so that forever after the plot has been subject thereto.
Clause 1 of Part Il ensured that the Purchaser of a plot did not obtain a right of light or air to any window in the house standing upon the plot. This was important. If the purchaser has acquired a right of light to the windows in the house he might have been able to prevent the Vendor from building a house on the adjoining plot.
Clause 2 of Part Il reserved to the Vendor the right to use any drains or sewers passing under the plot sold. This clause was necessary in each transfer to enable the Vendor to confer on each purchaser the right to use the drains and sewers under the whole estate as already mentioned in Part I.
Clause 3 of Part II reserved to the Vendor ownership and control of the roads paths grass verges open spaces and garden. lt also made provision that when the whole of the plots had been sold these items and the right to receive the rent charges already referred to should be vested in three trustees who should be members of the Holly Lodge Estate Committee. The provisions of this clause were duly carried out and the estate trustees at the present time are the successors in title of the original trustees.
Clause 4 of Part II was an escape hatch. Speculators developed the Estate. They realised that their scheme might not succeed. In that case they might find they had a large number of unsold plots, which could only be developed in accordance with the original scheme and were therefore a white elephant. Clause 4 was designed to enable them to escape from that situation if it arose. They could have altered the scheme and so made the unsold plots saleable. Fortunately the situation did not arise. The development was a great success and remains so to this day
We now come to Part Ill of the Schedule, which contains a number of restrictive provisions, which were designed to prevent individual plot owners from so using their respective houses as to harm, the character of the estate. These restrictions were imposed in accordance with what is known as a building scheme. As has already been mentioned the Estate was developed according to a precise scheme. London Garden Suburbs Limited prepared a plan dividing the estate into plots and also a number of restrictions which were to be imposed upon these plots with the intention that the owner of any plot was to be entitled to the benefit of the restrictions affecting every other plot and would have the right to enforce the observance of those restrictions by every other plot-owner so as to preserve the value and amenities of his own plot
ln order to have a valid building scheme it is not necessary that the restrictions affecting all plots should be identical, only that they a prearranged plan. In the Holly Lodge Estate the restrictions do in fact vary Thus on some plots flats are allowed. On plots in Swains Lane shops are permitted. At the foot of Hillway provision was made for a garage and in Makepeace Avenue we had the restaurant block.
Each plot was transferred to the purchaser thereof subject to and with the benefit of the covenants and restrictive conditions and stipulations specified in Part Ill of the Schedule. The purchaser then covenanted with the Vendor and its assigns and separately with each owner of any part of the Estate and the heirs and assigns of such owner that he, the purchaser, would observe and perform the said covenants and restrictive conditions and stipulations so far as the same ought to be observed and performed by the owner of the plot comprised in such transfer to the purchaser.
It is because each plot-owner covenanred with the heirs and assigns of every other plot-owner that today each plot owner has the legal right to enforce the observance of the restrictions by every other plot-owner. Furthermore the plot-owners are the only persons who possess that right. The Holly Lodge Estate Committee does not, as a committee, have the right to enforce the restrictions although each individual member of the Committee, being a plot-owner, does have the right. Before considering the actual restrictions it is first of all necessary to make a few general observations. A stipulation can be either positive in substance that is, a provision that the purchaser shall do what is stipulated, or it can be negative in substance that is, a provision that the purchaser shall not do what is stipulated.
When we talk of a restriction we mean a negative stipulation. When the owner of a house on the Holly Lodge Estate transfers it to someone else for example a purchaser, the right to enforce negative stipulations against the owners for the time being of other plots on the Estate passes automatically to the person to whom the house is transferred. This is not so with positive stipulations. ln order that the right to enforce a stipulation which is positive in substance may pass from one person to another it must be actually assigned by the one to the other. It is however the substance of the stipulation and not the words in which it is expressed which determine whether its nature is positive or negative.
We must also consider the obligation to perform the stipulation. This usually referred to as the burden of the covenant. When the owner of a plot on the Estate transfers it to someone else the burden of the negative covenants to which the plot is subject automatically passes to the transferee so that the transferee is under an obligation to perform such negative covenants. The burden of positive covenants however does not pass on automatically in this way
Further, the covenants were imposed in such a way that the owner of the plot is under no liability in respect of a breach of covenant committed after he has parted with all interest in it. Therefore once the original purchaser of a plot sold it, he ceased to be liable on the covenants and the purchaser was only liable in respect of the negative covenants. No one was any longer under an obligation to perform in respect of that plot any covenant, which was positive in substance. There must be very few (if any) instances where a plot is still owned by the original purchaser from London Garden Suburbs Limited. In what follows it is assumed there are none. So much for the right to enforce the restrictions. Now let us consider what are the restrictions to which every house in the Estate is subject. As already mentioned they appear in Part Ill of the Schedule.
Clause 1 of Part lll. The obligation to maintain a wall or close-boarded fence is positive in nature, and cannot be enforced. lt however implies a negative stipulation namely not to put up any other type of fence. Therefore while a plot owner cannot compel his neighbour to keep the existing wooden fence in repair he could possibly prevent his neighbour from putting up a chain link fence on the boundary referred to in the clause.
Clause 2 of Part III provides that one house only shall be erected on each plot. This is negative in substance. lt forbids the erection of more than one house and is clearly enforceable. The next part of the clause prohibits the letting of a house in separate tenements. ln other words it forbids part ofa house being let out for occupation as a separate household. In order to clarify what is intended it states that this does not prevent part of a house being let as fumished lodgings. A lodger is a person who is taken into ones home and lives there as one of the family He has no separate household and no tenancy The entire second sentence is one prohibition and is enforceable.
Clause 3 of Part Ill is negative in substance and is enforceable. lt does not attempt to compel the plot-owner to build a house. lt prohibits him from building one, which does not comply with the provisions of the clause.
Clause 4 of Part Ill could very conveniently have been consolidated with the first sentence of Clause 2. It is dealing with the same subject namely what may be erected on a plot. lt is negative in substance and is therefore enforceable.
Clause 5 of Part III is dealing with a different subject namely what the building may be used for after it has been erected. It clearly states that the building may not be used for any purpose other than a private dwelling house. “a”, the indefinite article, means “one”. The building may thereof only be used as one private dwelling house.
To use one of the houses on the Estate as two flats or two residences for two families or two households would be a breach of the restriction, which is clearly negative in substance and enforceable.
The clause also forbids any trade manufacture or business except those, which it expressly permits, namely private school or the profession of solicitor, surgeon, physician or dentist. The clause then proceeds to limit what outward indication there may be that a permitted profession is being carried on.
After this the clause proceeds to place some limitation upon the nature of the business that may be carried on upon the “excepted plots”. This is obviously intended to be a reference to the shop plots in Swains Lane, which are comprised in the exception, which appears in clause 4 of Part Ill.
Clause 6 of Part III relates to the payment of the annual rent charge of £2.50_ This is clearly a positive stipulation and would be unenforceable against the present owners of the houses if this stipulation were all that the trustees had to rely upon. However it is not so. A rent charge payable in perpetuity out of a property is a legal interest in that property The rent charge was validly created by the formal part of the transfer and all the rent charges are vested in the Estate Trustees who hold in respect thereof a land Certificate issued by Her Majestys Land Registry
Clause 6 then proceeds to specify the use to which the Committee are to apply the rent charge. The Committee having received the money are bound to apply it in accordance with those provisions but only as far as the money will go which is not very far.
Clause 7 of Part III deals with the constitution of the Estate Committee and provides that it shall be governed by the Estate Regulations. It also deals with the procedure for appointing new trustees and confers upon the Committee power to make by-laws regulating the use of the open spaces and gardens upon the Estate.
Appendix (Schedule to the Transfer)
1. Right of way for all purposes over the roads and open spaces for the time being on the estate known as the Holly Lodge Estate comprised in the said Title No. 276353 and of using the drains and sewers thereunder and of using the gardens shown on the Estate plan subject to the payment of the annual sum hereinafter mentioned in respect of each plot towards the expense of paving repairing cleaning and maintaining the roads paths grass edges open spaces gardens sewers and drains.
l. The conveyance of any plot shall not be deemed to include any right of light or air over any adjoining or neighbouring land and all privileges in respect of light or air (if any) enjoyed over any adjoining or neighbouring land in respect of any plot shall be deemed to be so enjoyed by the licence or consent of the Vendor and not as of right.
2. In respect of each plot there is reserved the right of user of all drains and sewers at any time in and under such plot for the benefit of the owner of any other plot subject to the liability of each person making use of any such drain or sewer to contribute his rateable proportion of the expenses of cleansing repairing renewal or reconstruction or enlargement thereof whenever necessary
3. The Vendor shall retain ownership and control of the intended roads paths grass edges open space and gardens until the whole of the said plots and sites are sold and conveyed to the respective purchasers thereof and thereafter the Vendor shall convey the land forming the said roads paths grass edges open spaces and gardens together with the rent-charges reserved for the maintenance thereof to three persons (as trustees for and nominees of the whole of the plot owners) being persons (as trustees for and nominees of the whole of the plot owners) being members of and nominated by a Committee to be called “the Holly Lodge Estate Committee” which Committee shall be elected by the plot owners.
4. The Vendor reserves to itself and to all persons deriving title under it to the said Holly Lodge Estate or any part thereof otherwise than by conveyance in which the right reserved by this condition shall not be expressly assigned the right to sell transfer or otherwise deal with any part of the property which may not be sold or the sale of which may not be completed free from the exceptions and reservations contained in this part of the Schedule and restrictive conditions and stipulations contained in the third part of the Schedule in such plots and subject to such restrictions and stipulations (if any) as it may think fit.
l. Every purchaser shall forever maintain proper boundary walls or substantial close- boarded fences on his plot on the sides marked T on the said plan of such height and design as shall be approved by the Vendor.
2. One house only shall be erected on each plot and shall be the type approved by the Vendor. No house shall be let out in separate tenements but this shall not prevent part of a house being let as furnished lodgings.
3. The front wall of any house or building to be erected on any part of the premises shall range and be in a line with the building line to be approved by the Vendor and the local and other responsible authorities and no building or erection of any kind except verandahs porches bay windows or similar structures to be approved of in writing before erection by the Vendors Surveyor and such authorities and except such boundary fence as aforesaid shall be erected on any portion of the premises of any plot which lies between such building line and any of the roads or streets marked on the said plan.
4. Except as to the plots in Swains Lane Nos. l,3,5,7,9 and 11 no permanent building of any kind shall at any time be erected except a private dwelling house and the stabling garage offices and outbuilding thereof.
5. No building to be erected on any of the plots (except the said plots in Swains Lane) shall at any time hereafter be used for any purpose other than a private dwelling- house or a coach-house and stable garage and outbuildings belonging thereto and no trade manufacture or business of any kind shall at any time be set up or carried on in or upon the plots except as aforesaid but this shall not preclude the carrying on of a private school or the profession of solicitor surgeon physician or dentist without other outward indication thereof than a brass or other plate or inscription covering a space of not more than one foot by one foot and none of the excepted plots or any building erected thereon shall be used for any offensive noisy or dangerous trade manufacture business pursuit or occupation or any purpose which shall or may grow to be in any way a nuisance damage grievance or annoyance to the Vendor or its assigns or the tenants of any of the neighbouring plots or which may tend to depreciate or lessen the value of the said estate or any part thereof as a residential property
6. The owner or owners of each plot shall at all times hereafter pay to the Vendor or such Committee when constituted an annual sum of £2.50 towards the expense of making repairing cleansing and maintaining to the satisfaction of the vendor or the said Committee the said roads paths grass edges and open spaces and proper sewers and drains under the same and all other expense of maintaining and keeping in good order and condition and properly planted the gardens in North and South Drive but so nevertheless that each plot owner shall be liable for all expenses in maintaining the drain from his plot to the junction thereof with the sewer. Such annual sum shall be paid free from all deductions on the 25th December in each year the first payment to be made by each plot owner on the 25th day of December next following the comple- tion of the purchase of his plot and such annual sum shall be reserved to the Vendor and its assigns by way of a rent-charge on each plot on the conveyance thereof by the Vendor.
7. The said Estate Committee shall consist of no less than five nor more than nine members who shall be elected by the plot owners the first committee to be elected at a meeting to be convened in due course by the Vendor and thereafter to be subject to the rules and regulations appended hereto and called Estate Regulations. The said Committee shall have power to appoint new trustees in place of any trustees retiring or for any reason becoming unable or unfit to act and to make rescind and alter bye-laws regulating the user of the open spaces and gardens and until such Estate Committee shall have been formed and constituted the user of the open spaces and gardens shall be regulated in such manner as the Vendor shall from time to time prescribe.