Restrictive covenant on garage

leonj

This is standard on coach houses, nobody want to sleep above someone else's unknown pile of junk, they don't have any idea of what could be in there

Section62

Boxworld said:

Thrugelmir said:

Boxworld said:

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. 

What Thrugelmir means is that the insurer saying they will cover contents in the garage doesn't give you the legal right to do so. Especially if the lease says/imples otherwise.

Boxworld

Section62 said:

Boxworld said:

Thrugelmir said:

Boxworld said:

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. 

What Thrugelmir means is that the insurer saying they will cover contents in the garage doesn't give you the legal right to do so. Especially if the lease says/imples otherwise.

Agreed. My point is that the lessor stated their insurance was being voided by the insurer in their legal action. The underwriters have confirmed they will not void the policy for lessee contents. So that's now a mute point. So to me the legal case now rests on the interpretation of whether the lease wording intended to only allow lessees to put motor cars in their garages. There are some 30+ residents on the same estate with the same lease who all store contents in their garages, so all their conveyancers either missed this clause or thought it means for use by a family. There are some other factors that I can't mention here, but it appears there could be personal issues between the lessor and another lessee that brought this about. I will update when I have a result. 

Section62

Boxworld said:

Agreed. My point is that the lessor stated their insurance was being voided by the insurer in their legal action. The underwriters have confirmed they will not void the policy for lessee contents. So that's now a mute point.

I mentioned that the other day - there are various reasons why the lessor might have said the insurer wouldn't allow the storage of stuff in the garages, it doesn't have any impact on the legal position.

Boxworld said:

So to me the legal case now rests on the interpretation of whether the lease wording intended to only allow lessees to put motor cars in their garages. There are some 30+ residents on the same estate with the same lease who all store contents in their garages, so all their conveyancers either missed this clause or thought it means for use by a family.

There's another possible explanation, the conveyancers saw the lease wording and (as they often do with restrictions) took the view that nobody in the 21st century would expect someone to only keep a motor car in their garage and consequently the risk of enforcement of the term is too small to be worth mentioning.

A lot of restrictions of this nature are ignored by both parties... until the day one or the other decides they want to enforce. A good example of when this happens is where 'personal issues' between people results in seeking ways to get one over the other.

How many of the 30+ have been told to remove contents from their garages, and how many would be willing to put their own money into a legal challenge/defence?

Boxworld

Section62 said:

Boxworld said:

Agreed. My point is that the lessor stated their insurance was being voided by the insurer in their legal action. The underwriters have confirmed they will not void the policy for lessee contents. So that's now a mute point.

I mentioned that the other day - there are various reasons why the lessor might have said the insurer wouldn't allow the storage of stuff in the garages, it doesn't have any impact on the legal position.

Boxworld said:

So to me the legal case now rests on the interpretation of whether the lease wording intended to only allow lessees to put motor cars in their garages. There are some 30+ residents on the same estate with the same lease who all store contents in their garages, so all their conveyancers either missed this clause or thought it means for use by a family.

There's another possible explanation, the conveyancers saw the lease wording and (as they often do with restrictions) took the view that nobody in the 21st century would expect someone to only keep a motor car in their garage and consequently the risk of enforcement of the term is too small to be worth mentioning.

A lot of restrictions of this nature are ignored by both parties... until the day one or the other decides they want to enforce. A good example of when this happens is where 'personal issues' between people results in seeking ways to get one over the other.

How many of the 30+ have been told to remove contents from their garages, and how many would be willing to put their own money into a legal challenge/defence?

Yes I think this is personal with another Lessee. There are only 3 lessees effected by this. The remaining 27+ lessors and lessees all happily use their garages for storage, as does our lessor. Which is why it is so pointless. There has now been a court case raised, and we have had a barrister who specialises in these type of cases create a defence. He believes the court will see it as generic, i.e to be used as a garage and not for a business or band practice etc. It does not say "only". And as there is no loss to anyone's enjoyment etc etc. We will see how that goes. At the end of the day the killer in these personal cases for defendants is the legal process and costs. 

Section62

Boxworld said:

Section62 said:

Boxworld said:

Agreed. My point is that the lessor stated their insurance was being voided by the insurer in their legal action. The underwriters have confirmed they will not void the policy for lessee contents. So that's now a mute point.

I mentioned that the other day - there are various reasons why the lessor might have said the insurer wouldn't allow the storage of stuff in the garages, it doesn't have any impact on the legal position.

Boxworld said:

So to me the legal case now rests on the interpretation of whether the lease wording intended to only allow lessees to put motor cars in their garages. There are some 30+ residents on the same estate with the same lease who all store contents in their garages, so all their conveyancers either missed this clause or thought it means for use by a family.

There's another possible explanation, the conveyancers saw the lease wording and (as they often do with restrictions) took the view that nobody in the 21st century would expect someone to only keep a motor car in their garage and consequently the risk of enforcement of the term is too small to be worth mentioning.

A lot of restrictions of this nature are ignored by both parties... until the day one or the other decides they want to enforce. A good example of when this happens is where 'personal issues' between people results in seeking ways to get one over the other.

How many of the 30+ have been told to remove contents from their garages, and how many would be willing to put their own money into a legal challenge/defence?

Yes I think this is personal with another Lessee. There are only 3 lessees effected by this. The remaining 27+ lessors and lessees all happily use their garages for storage, as does our lessor. Which is why it is so pointless. There has now been a court case raised, and we have had a barrister who specialises in these type of cases create a defence. He believes the court will see it as generic, i.e to be used as a garage and not for a business or band practice etc. It does not say "only".

I commented on this earlier in the thread - the wording you quoted in the first post doesn't need the word "only" to have the effect of meaning "only".  The construct "not to... otherwise than..." has that effect.

Boxworld said:

And as there is no loss to anyone's enjoyment etc etc.

The other side will probably argue the opposite.

Boxworld said:

We will see how that goes. At the end of the day the killer in these personal cases for defendants is the legal process and costs.

Did you find out about the situation with the planning consent/conditions?

Let us know how it works out.  Unfortunately you are right about the process and costs, sometimes the person who ends up being "right" is the one with the deeper pockets, not the one who is correct.  Litigation can be a bit like tossing a coin, and equally difficult to predict the outcome.  (Hopefully your barrister explained that)

Slinky

leonj said:

This is standard on coach houses, nobody want to sleep above someone else's unknown pile of junk, they don't have any idea of what could be in there

As opposed to sitting above a car with tanks containing petrol or diesel?

Section62

Slinky said:

leonj said:

This is standard on coach houses, nobody want to sleep above someone else's unknown pile of junk, they don't have any idea of what could be in there

As opposed to sitting above a car with tanks containing petrol or diesel?

The point is cars are a known quantity - the risk of a fuel tank leak is low, the total mass of combustibles is fixed.  It isn't common for the fuel tanks of parked cars to suddenly catch fire (unlike in the movies where cars seem to explode all the time).  With those 'knowns' the building can be designed to give 'x' minutes of fire protection to the dwelling above.

The problem with the 'unknown pile of junk' is quantifying the risk and assessing whether the designed fire protection has been compromised as a result.  E.g. The gas cylinder in the BBQ (and/or the spare) represent an entirely different kind of risk than a car.  Piles of cardboard/newspaper have different combustion characteristics to car parts.

Post-Grenfell, this isn't something that anyone with a degree of common sense and desire for self-preservation is going to ignore (that is, if they know about it).

Boxworld

Section62 said:

Slinky said:

leonj said:

This is standard on coach houses, nobody want to sleep above someone else's unknown pile of junk, they don't have any idea of what could be in there

As opposed to sitting above a car with tanks containing petrol or diesel?

The point is cars are a known quantity - the risk of a fuel tank leak is low, the total mass of combustibles is fixed.  It isn't common for the fuel tanks of parked cars to suddenly catch fire (unlike in the movies where cars seem to explode all the time).  With those 'knowns' the building can be designed to give 'x' minutes of fire protection to the dwelling above.

The problem with the 'unknown pile of junk' is quantifying the risk and assessing whether the designed fire protection has been compromised as a result.  E.g. The gas cylinder in the BBQ (and/or the spare) represent an entirely different kind of risk than a car.  Piles of cardboard/newspaper have different combustion characteristics to car parts.

Post-Grenfell, this isn't something that anyone with a degree of common sense and desire for self-preservation is going to ignore (that is, if they know about it).

However cars catch fire often, and it's because they have wiring, electricity and loads of flammable seat covers. As do flats for the same reason. Our garage has no electricity so no source of ignition. The lessor can inspect the garage any time for "piles of junk". 

Section62

Boxworld said:

Section62 said:

Slinky said:

leonj said:

This is standard on coach houses, nobody want to sleep above someone else's unknown pile of junk, they don't have any idea of what could be in there

As opposed to sitting above a car with tanks containing petrol or diesel?

The point is cars are a known quantity - the risk of a fuel tank leak is low, the total mass of combustibles is fixed.  It isn't common for the fuel tanks of parked cars to suddenly catch fire (unlike in the movies where cars seem to explode all the time).  With those 'knowns' the building can be designed to give 'x' minutes of fire protection to the dwelling above.

The problem with the 'unknown pile of junk' is quantifying the risk and assessing whether the designed fire protection has been compromised as a result.  E.g. The gas cylinder in the BBQ (and/or the spare) represent an entirely different kind of risk than a car.  Piles of cardboard/newspaper have different combustion characteristics to car parts.

Post-Grenfell, this isn't something that anyone with a degree of common sense and desire for self-preservation is going to ignore (that is, if they know about it).

However cars catch fire often, and it's because they have wiring, electricity and loads of flammable seat covers. As do flats for the same reason. Our garage has no electricity so no source of ignition. The lessor can inspect the garage any time for "piles of junk". 

So how often do parked cars catch on fire then?  In my experience it is quite rare, and fires usually happen while the car is being driven and as a consequence of poor maintenance.

If an ICE car is parked with the ignition off then the power circuits (the ones most likely to overheat) are de-energised. No occupants means nobody to do something to cause the seat covers to catch light (which really isn't that easy to do to start with).

But the main point - as I said in that quoted post - is that the risk associated with a car fire is quantifiable.  This is what building designers (and insurers) will want to deal with, not the unknowns of "piles of junk".

The relevance of this is that you need to make sure your legal action is based on facts which can be demonstrated - if you/your barrister start claiming that cars "catch fire often" and thus pose more of a risk to the building (and occupants) than stored household items (/"piles of junk") then you will expose yourself to the risk of an expert witness for the other side shooting your argument down using statistics and technical analysis.  I've been tangentially involved in the design and management of car parks and storage spaces. I would take the risks associated with a parked car over the risks of a random selection of stored items on every occasion.

That may not be why the covenant was written like it has been, but post-Grenfell a convincing technical argument can be made for limiting what items are stored in unattended spaces underneath flats. (and an electrical supply is not the only source of ignition which needs to be considered).