Restrictive covenant in freehold house

Slinky

Are you asking these questions because this is what you intend to do, or is it hypothetical?

andyfa

Does your mortgage allow subletting ?

Yes, the lodger, just has to sign a piece of paper.

SmashedAvacado

andyfa wrote: »

How could I prove that something has not happened? How many cars are too many? How many are enough? If the HMO has no more occupants than the usual house of the same size in the estate and no more that usual cars would that be OK?

Its not about you proving what is or is not unreasonable, it is about you proving, only if challenged (and the burden is on you), that your occupation does not impact on the owner of the dominant land. So for example, if you are causing traffic or taking up all of the on street parking. Before you even worry about these covenants, you should be working out who has the benefit of them.

shortcrust

andyfa wrote: »

Their answer will be full of caveats, therefore usually useless.

An answer full of caveats from a solicitor will more useful than the responses you get on here, many of which will be written by people who might be less informed by you. And the caveats are probably be the most valuable info you'll get. There'll be caveats because there isn't a simple yes or no answer to the questions.

andyfa

Its not about you proving what is or is not unreasonable, it is about you proving, only if challenged (and the burden is on you), that your occupation does not impact on the owner of the dominant land. So for example, if you are causing traffic or taking up all of the on street parking. Before you even worry about these covenants, you should be working out who has the benefit of them.

According to the transfer, any owner of the property in the development.

SmashedAvacado

OP - my understanding is that neighbours could only seek to enforce the covenant if their land was part of the benefiting land (the dominant land) at the time the covenant was made and if the covenant otherwise passes the tests of enforce-ability.

yes - the burden would be on you once you were challenged

No doubt your solicitor will confirm this (or correct me)

andyfa

Are you asking these questions because this is what you intend to do, or is it hypothetical?

I am planing to sublet two rooms, but in a for bed house. 3 people in the property. I will make sure there are no more than 2 cars in the house.

I also work from home very often.

The question about the HMO is about the my options if I decide to move in the future. Not really planning to do it, but I like to keep my options open.

davidmcn

shortcrust wrote: »

An answer full of caveats from a solicitor will more useful than the responses you get on here, many of which will be written by people who might be less informed by you. And the caveats are probably be the most valuable info you'll get. There'll be caveats because there isn't a simple yes or no answer to the questions.

Indeed, I'm not sure how there could be an uncaveated answer. Your solicitor can explain the legal principles involved and what generally occurs in practice (which is what we're doing), they can't guarantee you won't encounter nutjob neighbours or bizarre court decisions.

SmashedAvacado

andyfa wrote: »

According to the transfer, any owner of the property in the development.

Andy - what the transfer says is subject to what the law says. You need to understand the law - and the law provides that covenants can only be enforced in some circumstances. This prevents land becoming improperly burdened.

G_M

andyfa wrote: »

Does the fact that it stats "to use the same as a private dwellinghouse in a single family occupation only" not "to use as a private dwellinghouse in a single family occupation only" makes it less likely to be enforceable?

You have misunderstood the meaning of 'the same' in this context.

4.4 a) Not to use or permit to be used the Property or any other part thereof for the carrying out of any trade manufacture business or occupation whatsoever but to use [STRIKE]the same[/STRIKE]the property as a private dwellinghouse in a single family occupation only.

Does that make it clearer?


Letting out two rooms to lodgers would clearly breach the restriction to 'a single family occupation only'.



Whether anyone with the benefit of the covenant would know, whether they would care, whether the would take action, and whether they could prove the breach, are all subseqent questions.


(hence a solicitor would, indeed, reply with caveats!)