Restrictive covenant on garage

Section62

BikingBud said:

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.

I meant that it is easier to knock a two-wheel bike over compared to a four-wheel car.  E.g. If a pile of assorted contents stored in the garage falls it could hit the bike and make it topple.  That wouldn't happen with a car.

BikingBud said:

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.

If a bike falls over the fuel tank may be the first part hit, or something could fall and hit the tank.  That's what I meant about them being 'more exposed'.  The same isn't going to happen to the fuel tank of a car parked in a garage.

(no personal animosity towards bikes, just reflecting that arguments can be (and are) made that different risk profiles exist between vehicle types)

Boxworld

Boxworld said:

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!

Yes your correct, sorry maybe I used the wrong terminology. They are lease terms. However if the garage is unusable (due to size) for a car and the lessor and lessees use their garages for storage currently, and the lessor has insurance that allows storage, then how could a court agree to forfeit our leases or even ask us to clear them out without insisting the lessor does the same. The other side of the coin is how can the lessor provide a garage for garaging a car if you cannot fit an average one in it and open the doors, surely the lessor is in breach for 999 years ?

Section62

Boxworld said:

Yes your correct, sorry maybe I used the wrong terminology. They are lease terms. However if the garage is unusable (due to size) for a car and the lessor and lessees use their garages for storage currently, and the lessor has insurance that allows storage, then how could a court agree to forfeit our leases or even ask us to clear them out without insisting the lessor does the same.

You have a contract.  Both parties have to fulfil their obligations under that contract.  You've agreed not to use the garage other than for garaging a motor car.  Strictly speaking the lessor doesn't need to give an explanation why they want to enforce this term, it only matters whether you are in compliance with it.  It wouldn't surprise me if the lessor mentioned the thing about insurance to 'distance' themselves from the action - i.e. attempting to keep a good relationship with you by suggesting they were forced into taking this action.  Ignore the point about insurance, consider only whether or not you are complying with the terms of the lease.

The terms of your lease don't give you the right to control what the lessor does with their own property (unless there is something we've not seen).

Boxworld said:

The other side of the coin is how can the lessor provide a garage for garaging a car if you cannot fit an average one in it and open the doors, surely the lessor is in breach for 999 years ?

The lease doesn't appear to specify the size of car you will be able to park in the garage.  The garage is large enough to park a car in.  You viewed the property and (presumably) reviewed the terms of the lease before agreeing to it.  The lessor is meeting their obligation by making the garage you viewed (and/or was described in the lease) available to you for the purpose described in the lease.

They aren't in breach because you can't park a larger car than the garage was designed for.

The equivalent is buying a 1-bed leasehold flat and then complaining it is too small for a family of 6. There's no obligation to give you a flat big enough for a larger family. There's an element of 'buyer beware' involved here.

anotheruser

It's a shame there isn't a law about creating complicated houses like this.
Only done to squeeze more onto a plot.

canaldumidi

anotheruser said:

It's a shame there isn't a law about creating complicated houses like this.
Only done to squeeze more onto a plot.

There IS a law that provides a process which could prevent complicated houses like this. It's Planning law.

jrawle

Section62 said:

You have a contract.  Both parties have to fulfil their obligations under that contract.  You've agreed not to use the garage other than for garaging a motor car.  [...]

Except it doesn't say that. It says it can't be used other than as "a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car". Now, I'm sure we are in agreement that the awkward wording is due to it being copy and pasted from a generic leasehold property lease. Where we differ in opinion is what that means when it's applied to a leasehold garage. Your view is that only the parking part counts. Other people's view is that the spirit of the clause is to prevent commercial/antisocial use of the property. Use of the garage for a purpose ancillary to a private, domestic dwelling would be fine in the latter case.

By that way, such terms in a lease are referred to as lease covenants. That's what they were called in the lease on my former flat. Yes, they are slightly different from restrictive covenants seen in other circumstances, but the latter isn't the sole meaning of the word covenant.

Various sites have guides to what happens if you are allegedly in Breach of Covenants on a lease. This is one firm's guide that I found in Google at random, which is quite useful. There is a long process if you are taken to court by the freeholder (which is why that rarely happens even with far more blatant breaches) and as you can see, there are various stages where you have an opportunity to remedy the breach. Even if you still don't do this and the freeholder obtains a possession order, you can apply for "relief from forfeiture", although you will likely then have to pay the other party's costs.

https://oliverfisher.co.uk/service/breach-of-covenants-and-forfeiture-residential-leases/

In summary, I don't believe you are in breach of the spirit of the lease. Even if the freeholder thinks you are, they are unlikely to take court action. Even if they do, the court may rule in your favour. Even if not, you can simply resolve if by removing the stored items at that stage before any action can be taken to forfeit your lease.

Boxworld

jrawle said:

Section62 said:

You have a contract.  Both parties have to fulfil their obligations under that contract.  You've agreed not to use the garage other than for garaging a motor car.  [...]

Except it doesn't say that. It says it can't be used other than as "a private dwelling in the occupation of one family and/or as a garage for the garaging of a private motor car". Now, I'm sure we are in agreement that the awkward wording is due to it being copy and pasted from a generic leasehold property lease. Where we differ in opinion is what that means when it's applied to a leasehold garage. Your view is that only the parking part counts. Other people's view is that the spirit of the clause is to prevent commercial/antisocial use of the property. Use of the garage for a purpose ancillary to a private, domestic dwelling would be fine in the latter case.

By that way, such terms in a lease are referred to as lease covenants. That's what they were called in the lease on my former flat. Yes, they are slightly different from restrictive covenants seen in other circumstances, but the latter isn't the sole meaning of the word covenant.

Various sites have guides to what happens if you are allegedly in Breach of Covenants on a lease. This is one firm's guide that I found in Google at random, which is quite useful. There is a long process if you are taken to court by the freeholder (which is why that rarely happens even with far more blatant breaches) and as you can see, there are various stages where you have an opportunity to remedy the breach. Even if you still don't do this and the freeholder obtains a possession order, you can apply for "relief from forfeiture", although you will likely then have to pay the other party's costs.

In summary, I don't believe you are in breach of the spirit of the lease. Even if the freeholder thinks you are, they are unlikely to take court action. Even if they do, the court may rule in your favour. Even if not, you can simply resolve if by removing the stored items at that stage before any action can be taken to forfeit your lease.

Thanks for the points. Yes I agree it is awkward wording and probably cut and paste, the whole lease swaps context seemingly talking about maisonettes then garages. Like you most people seem to believe the spirit of the lease is use it for domestic use but as we see here some think it must be followed strictly on the wording. The simple question to me is why would a developer allow a motor car but not a moped or mobility scooter. The answer is they probably didn't mean that which is why everyone who purchased one and their conveyancers have not read it as a restriction. Reasonable people could sit down and come to a reasonable solution, which the lessees have tried. We doubt any court will forfeit our lease (as that is what is being asked for). One wonders if the court can make an alternative decision to declare we must just clear them out but they will not forfeit. Would that be deemed a win for the lessee or the lessor? To us, if the court cannot find to forfeit then it finds in our favour. But I'm not sure if that's the case.

jrawle

Boxworld said:Thanks for the points. Yes I agree it is awkward wording and probably cut and paste, the whole lease swaps context seemingly talking about maisonettes then garages. Like you most people seem to believe the spirit of the lease is use it for domestic use but as we see here some think it must be followed strictly on the wording. The simple question to me is why would a developer allow a motor car but not a moped or mobility scooter. The answer is they probably didn't mean that which is why everyone who purchased one and their conveyancers have not read it as a restriction. Reasonable people could sit down and come to a reasonable solution, which the lessees have tried. We doubt any court will forfeit our lease (as that is what is being asked for). One wonders if the court can make an alternative decision to declare we must just clear them out but they will not forfeit. Would that be deemed a win for the lessee or the lessor? To us, if the court cannot find to forfeit then it finds in our favour. But I'm not sure if that's the case.

I have no legal qualifications, so the usual disclaimers apply. If you are unsure, seek out professional legal advice, and do your own research.

However, my understanding from Googling e.g. the link I posted before, is that there is a particular process the freeholder has to go through. They can't just decide to take your lease away because you have breached one small point on the lease. If a court rules you are in breach, you could say you have "lost" the case, but you then just have to remedy the situation, i.e. remove the stored items. Only if you fail to do this could they then apply to the court for a possession order.

That's how civil law works. If you are wronged, you go to court, and get whatever was wrong put right. Apart from possibly having to pay the other person's costs (although that's probably rare too) there isn't supposed to be punishment for whatever you did wrong.

Thrugelmir

Boxworld said:

Boxworld said:

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!

the lessor has insurance that allows storage, 

The insurance company covers risk, a policy doesn't infer the legal right to do something. The policy would be deemed void. 

Boxworld

Thrugelmir said:

Boxworld said:

Boxworld said:

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!

the lessor has insurance that allows storage, 

The insurance company covers risk, a policy doesn't infer the legal right to do something. The policy would be deemed void. 

Not correct. The insurer has been given a copy of the lease and they added additional notes in the lessors policy confirming they cover the whole building and expect cars and/or household items privately owned by the residents of the associated properties to be put in all garages. They only cover the lessees contents obviously.