Restrictive covenant on garage

FreeBear

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.

Would they allow something like a Reliant Robin to be parked in this garage ?

What about a motorcycle & sidecar combination ?

Both are classed as a "Three wheeled motorcycle", so if one is permitted and not the other, who ever is making the decision is an Equus Asinus.

Boxworld

jrawle said:

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!

I tend to agree with you and that's also what our legal advisors have suggested. The intention is to stop people using the garage for business or things that would ruin the quite enjoyment for other residents. But everyone including the lessors currently use their garages for storage and everyone has been happy doing that for years.

The only reason given for this action was void insurance, yet as mentioned I have seen the policy and it is 100% not voided. It even has additional notes stating they are aware of the lessee garages and just confirms they will not cover the lessees contents as they are covered by our own policies. 

I have seen one other lease clauses that has the word "only" before motor car, which is a different matter. But ours doesn't say "only a motor car" and it doesn't say not to use it for anything else. Later on there is a clause saying not to play a piano loud enough to be heard outside, which is very specific, so why not take the time to mention that no other contents can be stored inside. And does this mean a piano can be stored, just not played loud? 

As you say, I personally wouldn't want to live above 4 garages, but if you do buy a coach house should you not expect people to use them for storage? 

BikingBud

Section62 said:

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.

But those are 2 different reasons;

1. It's allocated parking or
2. Items stored within might present a danger of fire. 

You never know quite how it might be presented though, if the lessor sees it as 2 can you provide argument to the contrary.

Motorcycles don't just fall over! The rider may have a temporary loss of balance when riding but parked on the stand unattended on a solid and level surface, no.

Are the fuel tanks more exposed? Yes they are visible at the top of the bike but car fuel tanks are usually underslung and potentially susceptible to damage from road humps, debris etc. Furthermore would people be able to see and assess the damage to a car tank easily? Instead parking it in a garage with potential for leak and build up of fumes.

There are no objective grounds to complain that motorcycles are noisier than cars. People modify both to make them noisier.

Boxworld

Ditzy_Mitzy said:

We seem to be getting confused between restrictive covenants, which apply to freeholders, and lease terms, which apply to lessees.  The OP does not own the garage; a lease exists which allows him to use the garage in accordance with the specific clauses of that agreement.  One of the clauses states that the garage is to be used only for the 'garaging of a private motor car', which means exactly what it says it does.  The garage is not to be used for general storage or anything else that takes the lessee's fancy.  The OP will need to remove the goods from the garage and either keep a car in it or leave it empty.  

One wouldn't, as the owner of a leasehold flat with an allocated outdoor parking space, expect to be able to use said parking space for the storage of household goods.  The same principal applies here, in that the existence of the brick shell housing said parking space is irrelevant.  

However the lease does state the lessor must comply with the same clauses. Therefore if a court found in the lessors favour they would have to clear out their garage also!

TripleH

Plus a car has a larger fuel tank.

What about mobility scooters? Would you want to be the lessor when faced with that arguement?

It might he worth getting the lessor to confirm in writing what exactly you can and cannot keep in your garage.

Once they've done that, then you can start pulling the argument to shreds.

TripleH

https://youtu.be/paIGBOlkQr0

So I can park this in the garage but not keep my sofa in there?

I'd say this is more of a fire hazard.

Boxworld

Section62 said:

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.

The garage appears to be a virtual freehold, as the garage can only be sold with our house. It has a 999 year lease. 

Boxworld

TripleH said:

Plus a car has a larger fuel tank.

What about mobility scooters? Would you want to be the lessor when faced with that arguement?

It might he worth getting the lessor to confirm in writing what exactly you can and cannot keep in your garage.

Once they've done that, then you can start pulling the argument to shreds.

Thanks, we have mentioned Mobility scooters and will put this forward in court if it goes that far. I have asked for a list and been promised one. Here's looking forward to that :-)

Section62

Boxworld said:

I have seen one other lease clauses that has the word "only" before motor car, which is a different matter. But ours doesn't say "only a motor car" and it doesn't say not to use it for anything else. Later on there is a clause saying not to play a piano loud enough to be heard outside, which is very specific, so why not take the time to mention that no other contents can be stored inside. And does this mean a piano can be stored, just not played loud?

The wording quoted in your first post doesn't need to have "only" in it to have that effect.  It is clear as it stands.

The wording/structure of other clauses doesn't usually change the interpretation of a clause, unless the meaning of the clause is unclear.

As a general principle, it is best to say the least possible in legal agreements because it reduces the scope for differing interpretations -  it isn't a case of not taking the time to mention something.

If the clause said "no other contents can be stored inside" there could be arguments over the meaning of "other", the meaning of "contents", the meaning of "stored" and the meaning of "inside".  Not saying those words eliminates four points of argument.

The fewest words that have the precise effect desired is the best way to go. (and why I mentioned earlier that "and/or" is clumsy)

Boxworld said:

As you say, I personally wouldn't want to live above 4 garages, but if you do buy a coach house should you not expect people to use them for storage?

Not if the lease says they can't be used "otherwise than"...for..."garaging of a private motor car".

Since Grenfell people have been a lot more aware of how buildings are constructed, and the risks of fire.  If I were living in what amounts to a flat above a quantity of flammable material which shouldn't be there then there is no way I'd be ignoring it.

Boxworld

Section62 said:

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.

Interesting point regarding checking the original planning. I'll look into that. The developers went bust so can't ask them what the lease means :-)