Freehold Covenant Restricting Pets

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    Freehold Covenant Restricting Pets

    I have recently acquired the freehold to my block. It's slightly unusual in that it's one of many buildings within a development and the freeholder of the wider estate has imposed a restrictive covenant prohibiting pets. Myself and my wife feel particularly strongly about this and are interested to know if there is anyway of getting around it. The freehold is held in a limited company with a relative as the sole director whilst the leasehold property is in my name and I was wondering if I removed the same clause from my lease (if possible?) it would become unenforceable on me as the leaseholder? Presumably if the developments freeholder were to take action against the freehold company and it was upheld at the tribunal then the freehold could ultimately be repossessed?

    Any help or information would be much appreciated.



    #2
    I feel "pretty strongly" about people who sign a contract and then think that they don't have to give a stuff about obeying it.

    What do you mean "I have acquired the freehold" - yes you could change your own lease depending on what cross-covenant clauses there are, and then expect all the other lessees to treat you in kind, and hopefully make your life a total misery. The exact ownership structure here is totally obscure.

    Comment


      #3
      To clarify, there are only two flats in the building and we (the leaseholders) are both in agreement on this. Also, the buildings freehold was transferred over to us by the developer following a six-and-half year dispute over planning and building control violations (during which time neither of us could move), so it’s not really the case that we entered into an agreement that doesn’t suit us.

      It’s also particularly important to myself and my wife as our three year old has just been diagnosed with autism.

      Comment


        #4
        Please set out in full the terms of the freehold covenant. We need the introductory words and the relevant provision.

        Comment


          #5
          Thanks. The TP2 wording is:

          "Restrictive covenants by the transferee

          4. The Transferee covenants with the Transferor, for the benefit of the Estate and each and every part of it and every other person owning land forming part of the Estate, with the intention of binding the Property and each and every part of it:

          i) not to keep any animal or bird on the Property except with the previous written approval of the Transferor (which may be revoked at any time)
          "

          This is the same wording that appears in the regulations section of the lease and I was hoping that it would be unenforceable if the corresponding entry was removed from the lease (as the freehold and lease are in separate ownership)

          Comment


            #6
            Would it not just be easier to obtain permission to keep a pet if that's what you want to do?

            Comment


              #7
              The problem is that it can arbitrarily be revoked at any time and the fact that the estate will have a new freeholder when it is sold off in the next couple of years makes it too risky

              Comment


                #8
                So in acquiring the freehold the transferor included the transfer form the covenants about pets and the company (you appear to be able to control) agreed to this.

                Were the covenants explained to the company you control prior to the signing of the transfer form ? If not then you may have a case against your solicitor.

                If they were then you will need to seek a release from the Transferor if you do not feel comfortable about consent given by licence




                Comment


                  #9
                  How is "the Transferor" defined in the TP2?

                  Comment


                    #10
                    "So in acquiring the freehold the transferor included the transfer form the covenants about pets and the company (you appear to be able to control) agreed to this."

                    Correct (the wording is above)

                    "Were the covenants explained to the company you control prior to the signing of the transfer form ? If not then you may have a case against your solicitor."

                    It's a good point but I'm not sure how it would help me get around the covenant. The transfer itself was fraught with difficulty as the developer had fallen into bankruptcy leaving us having to deal with a receiver which caused all sorts of complications and at the time the discussion on pets was very much a side issue.

                    "If they were then you will need to seek a release from the Transferor if you do not feel comfortable about consent given by licence"

                    I'll certainly try but I think it's unlikely. There are some post sale commitments that I want to deliver on before raising it but in the meantime I was interested to know whether or not there's any scope to circumvent it via changes to the lease using the ownership structure or if it's a case of the covenant being absolute.

                    How is "the Transferor" defined in the TP2?

                    It just states the name of the previous owner, i.e. the bank that held the senior debt.

                    Comment


                      #11
                      There is no scope to circumvent the covenant by changing the lease.

                      If "the Transferor" is not defined to include successors in title then consent can only be given by the developer named in the TP2. If the developer is a company and is eventually dissolved there will be no one to give consent.

                      Whilst only the transferor can give consent, the terms of the covenant are such that it can be enforced by other "owners" on the estate which could inlcude leaseholders.

                      A covenant against keeping pets is a bit unusual for a freehold, but I imagine it was imposed because of the similar covenant in the leases. The wording is unsastisfactory as consent which can be withdrawn is effectively no consent at all.

                      There two possible ways to get rid of the covenant.

                      One is to obtain a release from all (and I mean all) the "owners". That is impractical and the expense would be disproportionate to the benefit.

                      The other is to apply for the covenant to be discharged or modified. The chances of success have to be slim if the covenant wasimposed recently. Apart from that, the expense would again be disproportionate.

                      The government is apparently contemplating making "no pets" clauses unenforceable, but what form it will take and whether freeholds will be included remains to be seen.


                      Comment


                        #12
                        In your desire to circumnavigate the covenants over the freehold title on the estate you ignore the possibility that someone on the estate may suffer from cynophobia (fear of dogs) who may have based their purchase on the strength of a covenant knowing pets cannot be kept at the property.

                        This idea of interfering with contracts, that will have been agreed between professional advisors over a period of a few months, because they are written in “legalese” and where purchasers may have been poorly advised is not really acceptable grounds for having the strength of those clauses set aside.

                        The UK is widely perceived throughout the world as a country subject to a stable legal system and therefore, a safe place to do business. Any legislation which in effect tears up contracts which have been freely entered by willing buyers and sellers who had professional representation prior to entering into them will put the UK in the same category of the many foreign countries that cannot be trusted to provide a stable environment in which to do business. It is even more important for the UK now as we agree our new trade deals across the world.


                        Comment


                          #13
                          Thanks, although obviously it's not what I was hoping to hear.

                          "Whilst only the transferor can give consent, the terms of the covenant are such that it can be enforced by other "owners" on the estate which could include leaseholders."

                          Do you mean the buildings other leaseholder or the leaseholders in other buildings on the development? I hadn't considered the possibility that the other buildings leaseholders could enforce it. What wording would point to this?

                          "A covenant against keeping pets is a bit unusual for a freehold, but I imagine it was imposed because of the similar covenant in the leases. The wording is unsastisfactory as consent which can be withdrawn is effectively no consent at all."

                          It's a standalone building at the front of the development with an entrance that's only ~20 feet from the front gate so the scope for any objections would be very limited. It's also highly unlikely that any purchases would have been made on the basis that there are no pets given that the covenants wording doesn't preclude them.

                          The Dogs and Domestic Animals Accommodation and Protection Bill (https://www.rosindell.com/campaigns/pet-every-home) seems to be aimed at removing the enforceability of no pets clauses in rental agreements, but wouldn't it have to remove the enforceability of the freehold covenant to achieve this?

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