O/T Conveyancing Solicitor

[Ralph]

Did I dream it or is there someone on here who is a conveyancing solicitor?

I have a question for you regarding an old covenant if you can help?

Cheers,

[Gary71]

Mark Slade aka sladey

[Sam]

What’s the question? I’ve been know to read the odd judgment from the Lands Tribunal. It’s how I get my kicks.

[Ralph]

This is an extraction from the Title:

1. NOT to carry on or permit to be carried on upon the land thereby conveyed any trade or business and any building to be erected thereon should be used for no other purpose than that of a private dwellinghouse or professional residence and any garage and outbuilding to be used therewith.

I have been told (by a managing agent) that this restricts the use of the property as a holiday let?

Cheers,

[Sam]

There is plenty of case law on that which broadly (to me) reads that if it’s the sort of house that will let to a family, rather than something like a big party mansion or a series of self-contained rooms with little kitchenettes that will get groups, it’s a dwelling house. The duration of occupation makes no difference.

Are the agents also seeking to ban assured shorthold tenancies?

[Sam]

https://www.pla.org.uk/2012/09/moore-v- ... overnment/

[Ralph]

No, the agents are fine with assured short tenancies. What they are saying is that the property can't be used as a holiday let as that is a business.

The development consists of identical buildings - half leasehold and half freehold, but only the freehold can be used as holiday lets due to a covenant from 1926. The properties were built in 1969.

[Ollie]

Does the beneficiary of the covenant have adjoining land? If not it is quite likely the covenant is not enforceable. If your property is leasehold there may be another clause that will trip you up which will be for use a 'family dwelling'.

[Hugh Jorgan]

It's unlikely anyone is alive to benefit from the covenant, can't you just take out some sort of indemnity insurance policy?

[Sam]

I am not a barrister, but I think there’s a good chance they’re wrong.

Why is a holiday let any more of a business than an AST?

The Moore ruling clearly shows a holiday let to a single household is a C3 residential use, not a business use.

Ultimately if they wanted to enforce their interpretation of the covenant they would have to show a judge that a holiday let was the type of business the covenant was intended to limit and that it would cause harm to the neighbours to let it. They would struggle to do either. A let house does no more harm than an owned house, they are occupied in the same way.

You may even find that, given the discrepancy between the freehold and leasehold properties, a judge rules the covenant unjust and strikes it.

[Sam]

It's unlikely anyone is alive to benefit from the covenant, can't you just take out some sort of indemnity insurance policy?

You won’t get insurance if the beneficiary is already aware and is threatening to enforce.

Most covenants include the wording ‘and their successors in title’ so death is no get out.

[Sam]

Does the beneficiary of the covenant have adjoining land? If not it is quite likely the covenant is not enforceable. If your property is leasehold there may be another clause that will trip you up which will be for use a 'family dwelling'.

Again, I’d imagine it’ll be the ‘successors in title’ bit, so any of the other properties originally bought after yours will benefit from the covenant as they are successors.

[Ralph]

Thanks for the replies.

You won’t get insurance if the beneficiary is already aware and is threatening to enforce.

It's not the beneficiary threatening to enforce it's the neighbours stirring things up with the management company.

[cubist]

Your friendly local pyromaniac might be useful here - certainly curtail your neighbours interest in enforcing any covenant? Allegedly.

[Sam]

Thanks for the replies.

You won’t get insurance if the beneficiary is already aware and is threatening to enforce.

It's not the beneficiary threatening to enforce it's the neighbours stirring things up with the management company.

So who is the beneficiary if not the neighbours?