Can I let this freehold indefinately ?

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    Can I let this freehold indefinately ?

    Is there any reason why I cannot let a freehold flat on a two flat maisonette where there are two freeholders with a deed of covenant between the two to cover such issues as maintaining the property? There appears to be nothing in the covenant restricting renting my property out and it’s been done in the past . I just want to know if there is anything I’m not aware of that the other freeholder could rely on to stop me letting over the coming years ?
    Its my only property / main home I’m not a pro landlord so forgive the nativity of the question please thanks .

    #2
    If there are no restrictions on letting affecting your title you can let. Bear in mind though that a restriction may in fact prevent letting even though it does not expressly refer to letting. For example, a covevant that the property is to be occupied by the owner and his family will effectively prevent letting on the open market.

    Comment


      #3
      Originally posted by Lawcruncher View Post
      For example, a covevant that the property is to be occupied by the owner and his family will effectively prevent letting on the open market.
      Would such a covenant be enforceable though?

      Comment


        #4
        Originally posted by ChrisDennison View Post

        Would such a covenant be enforceable though?
        A good question. The answer may depend on whether it is considered that the covevant benefits a successor of the original covenantee.

        Comment


          #5
          I think you refer to the requirements of restrictive covenants generally. My question was more around whether such a particular restrictive covenant wording would be enforceable.

          Comment


            #6
            Originally posted by ChrisDennison View Post
            I think you refer to the requirements of restrictive covenants generally. My question was more around whether such a particular restrictive covenant wording would be enforceable.
            What do you have in mind that may make it unenforceable?

            Comment


              #7
              Flats are usually held under leasehold title and the flat owner is bound by the lease.

              Are you sure your flat is under freehold title ?

              Comment


                #8
                Originally posted by Lawcruncher View Post

                What do you have in mind that may make it unenforceable?
                This is more of an exploratory question I have to say.

                I don’t have any specifics in mind, but if you take this further could a restrictive covenant that limits property use only to women / kids / one-armed pirates,... still be enforceable? How much restriction is still acceptable? Or is it unlimited?

                Comment


                  #9
                  I do not think that consumer legislation will apply.

                  Section 84 LPA 1925 sets out a number of factors which may allow a restrictive covenant to discharged or modified, but has nothing to say about where any particular covenant or class of covenants is intrinsically unenforceable.

                  A covenant which it is impossible or unlawful to comply cannot be enforced and neither can a covenant whch is contrary to public policy. Beyond that, I think it has to be a case of whether the restriction "touches and concerns" the land of the covenantee. I did a bit of Googling and found this site which addresses the very question and says that: "...a covenant not to use the burdened land for purposes other than single-family residential purposes makes the benefited party’s nearby land more enjoyable and valuable as a single-family residence by preventing uses. that would bring more traffic and people." Although it is a US site it does express a point of view which needs to be considered.

                  Comment


                    #10
                    Unlawful or impossible covenants aside it seems I guess in the end anything goes. Which is interesting - how much could you tweak the wording of the lease without the opposite party's conveyancer noticing it? The more restrictions are in the lease the less valuable the property might become. So it's an important consideration.

                    On the other hand ground rent clauses used to be allowed to be very much open ended and penal, and this has now stopped. So maybe something similar to that could happen around restriction of use clauses?

                    Comment


                      #11
                      Lease covenants, whether restrictive or not, come under a different regime. Restrictive covenants in leases are binding in law, whereas restrictive covenants affecting freehold properties are a creature of equity and hemmed in by all sorts of considerations and subject to section 84 LPA 1925. Further, a lease covenant can be challenged on the grounds that it conflicts with the intended purpose of the tenancy.

                      What a landlord can get away with depends on the lessee's conveyancer actually reading the lease and, if he does read it, how sharp he is. There have always been defective leases, but leases designed to make them a nice little earner for the landlord and containing excessive restrictions are of comparatively recent origin.

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post
                        Further, a lease covenant can be challenged on the grounds that it conflicts with the intended purpose of the tenancy.
                        Well but who’s to judge that intention? If I as the freeholder only want women, kids and one armed pirates in my block of flats and therefore put a restriction of use to that extent in the lease isn’t that my pretty unambiguous intention?

                        What a landlord can get away with depends on the lessee's conveyancer actually reading the lease and, if he does read it, how sharp he is. There have always been defective leases, but leases designed to make them a nice little earner for the landlord and containing excessive restrictions are of comparatively recent origin.
                        Well put. I have a property with a defective lease and my conveyancer requested that I take out title insurance (to be paid for by the seller) to cover this risk. Lo and behold now after about 9 years I have to use the insurance and their nominated solicitors to go against the freeholder.

                        Guess how many other owners of this block have title insurance? I’m the only one of 16 and I know the other 15 leases are similarly defective. And I know they all bought with a mortgage so will have had conveyancers dealing with their purchases.

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