Restrictive covenant on garage

Boxworld

HampshireH said:

Boxworld said:

Hi All. Any advice greatly welcomed.

I have a 4 bed house with a garage. We are a lessee of the garage as it is under a coach house (the lessor). After years of using the garage for household items (as the garage will only fit a tiny car), the lessor has told all 3 lessees to clear out their garages due as we are breaching a clause in the lease that voids the lessors insurance. So we are told we cannot keep anything else except a motor car inside - which nobody has ever done due to the size of the garage. So no bikes or motorbikes, no household items however safe. The clause pointed to is as follows: “not to use the property or permit the same to be used otherwise than as a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car”. The "property" in the lease refers to the garage. 

However the lessor uses their garage for storage and maintains they can. But the lease also has a clause under "Covenants by Lessor with Lessee" that basically says at all times to comply with the covenants in (the the same schedule which the clause above is quoted to us) as though the property were the lessors freehold estate in the block to the extent that it is not subject to a lease of a ground floor maisonette or garage assuming that reference to "the lessor" is to "the lessee" and visa versa.

We have seen the lessor insurance policy and there are no restrictions or penalties on it for lessee contents. In fact it implies they expect lessee contents by confirming they don't cover them - as expected.

The threat is for legal proceedings and forfeiture of the our 999 year lease.

Anyone have any advice ?

Thanks

As the freeholder. They probably can - any restrictions on your lease are completely seperate to their freehold.

Then why does the lease say the lessor must comply with the same rules?

Boxworld

Slithery said:

Remove your stuff from the garage and only use it for a vehicle?

We would if we could. But only the small and medium cars fit inside. Our medium sized family car when parked inside leaves us 2 inches to get out of the door which is impossible. There are 30 garages the same on the development. The only car I think would be suitable is a smart car. 

Boxworld

theoretica said:

The lease is quoted as "a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car".  A question seems to be what the precise meaning of the first half is - does it cover using the space as auxiliary to the main private dwelling (ie storage). 

Also, of course, the freeholder can't just cancel the lease - but would need to persuade a court not just to order the motorbike to move out but to cancel the lease.

Yes I agree. We think it means to use the garage in conjunction with the house for household items in the usual way. But these leases are written so badly it's down to interpretation.

Boxworld

ciderboy2009 said:

What is the wording on your lease for the garage?

Can you expand on that? I thought I'd put the lease wording in the original message. Is there another part you need?

canaldumidi

theoretica said:

The lease is quoted as "a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car".  A question seems to be what the precise meaning of the first half is - does it cover using the space as auxiliary to the main private dwelling (ie storage). 

Well one would have to define "a private dwelling". I suspect that to comply with the first half, the OP would have to install a kitchen and bathroom, or at the least a microwave and lavatory. Is there any water supply? Oh! And a bed.

If no water supply, what about installing a cassette toilet (£70?).

Section62

Boxworld said:

theoretica said:

The lease is quoted as "a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car".  A question seems to be what the precise meaning of the first half is - does it cover using the space as auxiliary to the main private dwelling (ie storage). 

Also, of course, the freeholder can't just cancel the lease - but would need to persuade a court not just to order the motorbike to move out but to cancel the lease.

Yes I agree. We think it means to use the garage in conjunction with the house for household items in the usual way. But these leases are written so badly it's down to interpretation.

See canaldumidi's post.

The garage is a garage, constructed for the parking of a (motor) vehicle.

To be able to use the garage as a "dwelling" would involve obtaining planning consent for conversion works, which you wouldn't be able to implement without breaching the terms of the lease.

You are leasing the garage separately from your freehold ownership of the house.  This means (IMV) that the two have to be treated entirely separately, for example the garage doesn't sound like it would be included within the curtilage of your house.

"in conjunction" may apply if the house and garage went together in one lease, but I don't think you can claim that in your circumstances.

Also, although the idea of filling a vehicle with items to get round the restriction is a nice way to get round the restriction, you do need to bear in mind your relationship with the lessor. At some point you are likely to want to sell the property and move, at which time you would potentially be required to declare the (possibly ongoing at that time) dispute between you and the lessor.  It could become a pyrrhic victory.

jrawle

Boxworld said:

I have a 4 bed house with a garage. We are a lessee of the garage as it is under a coach house (the lessor). After years of using the garage for household items (as the garage will only fit a tiny car), the lessor has told all 3 lessees to clear out their garages due as we are breaching a clause in the lease that voids the lessors insurance. So we are told we cannot keep anything else except a motor car inside - which nobody has ever done due to the size of the garage. So no bikes or motorbikes, no household items however safe. The clause pointed to is as follows: “not to use the property or permit the same to be used otherwise than as a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car”. The "property" in the lease refers to the garage. 

That looks like standard wording for any leasehold property, e.g. a flat that comes with a parking space or garage; the flat I used to live in had the same. The point of it is to stop a flat being used as an HMO (individual rooms let out) or the flat or parking being used for commercial purposes, for AirBnb, for parking a works van there, etc. All things that could impact the quality of life of other residents. I doubt it was intended to mean what the freeholder is interpreting it as. You are only using the property for your family, and not parking commercial vehicles.

To enforce the covenants, the freeholder would have to take you to court at their own expense. You have to ask whether the court is likely to side with them given what I've said above. Also, even if the court rules in their favour, the remedy is likely to be for you to remove items from the garage, not to forfeit the lease.

This does highlight the issue with these "coach house" style properties that seem commonplace on new developments, as a way to squeeze in an extra property above garages. I wouldn't like to live in a property that was above several other people's garages, where they could be storing all sorts of things, including several tanks of petrol or diesel in their private motors cars!

Section62

jrawle said:

I doubt it was intended to mean what the freeholder is interpreting it as.

I disagree. Terms of this type are usually imposed to (i) make sure the space is retained as a vehicle parking place and (ii) to control the use of the space to protect the amenity and safety of people living nearby/above.

The lessor is interpreting the term in the way it was intended to be interpreted - you can garage a motor car in the space, and nothing else.

jrawle said:

To enforce the covenants, the freeholder would have to take you to court at their own expense. You have to ask whether the court is likely to side with them given what I've said above. Also, even if the court rules in their favour, the remedy is likely to be for you to remove items from the garage, not to forfeit the lease.

We are dicussing a term in a lease, not covenants.  (See Ditzy_Mitzy's post)

jrawle said:

This does highlight the issue with these "coach house" style properties that seem commonplace on new developments, as a way to squeeze in an extra property above garages. I wouldn't like to live in a property that was above several other people's garages, where they could be storing all sorts of things, including several tanks of petrol or diesel in their private motors cars!

See the first point above.

TripleH

From memory,

2007 Hyundai Amica and a Fiat 500 probably also would fit in the space (I am guessing but these are what would go in our old car port and still allow you to exit the vehicle.

I find it strange that a motorcycle parked in the garage is not permitted according to the leaseholder. If it went to court I would be reasonably confident arguing allowing cars but not motorbikes was an unfair restriction.

Less so on pushbikes although there are possible arguments you could raise to argue unfair terms again.

Storage I do think is a weak argument even though that is pretty much all you can use a lot of older garages for. Has the property recently changed hands or is the owner a bit difficult ro deal with?

Section62

TripleH said:

I find it strange that a motorcycle parked in the garage is not permitted according to the leaseholder. If it went to court I would be reasonably confident arguing allowing cars but not motorbikes was an unfair restriction.

I also thought the restriction to a motor car was a bit OTT, but on reflection I think the answer might be found in the planning consent for the development perhaps requiring the garage to be used as a parking space (i.e. to meet the parking standards) for 'cars'.

I'm not sure how confident I would be at persuading a court excluding motorbikes is unfair.  They are noisier, the fuel tank is more exposed, they can fall over.  I think a determined person could make a reasonable argument that the difference is significant enough to make the restriction fair.