Lodger question / restrictive covenants

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    Lodger question / restrictive covenants

    Good morning
    I know this is a fairly common question but the wording is slightly different in the case of the leasehold flat I am buying. Essentially my question is whether I am able to take on a lodger,

    "Assign transfer underlet or part with or share possession of any part of the flat (as distinct from the whole) and will not underlet or part with possession of the flat as a whole except by way of assignment or transfer without the previous consent in writing of the Lessor such consent not to be unreasonable withheld"

    "Not to use the flat nor permit the same to be used for any purpose whatsoever other than as a private dwelling house in the occupation of one family only"

    My understanding is that the first covenant may not be contravened by a licence agreement to a lodger as possession is not in effect being shared.

    On the second covenant, could it be argued that two individuals who use common spaces, cook together etc are in effect a family unit?

    Failing this is there any case law that an absolute prohibition against subletting is unfair?

    Many thanks

    #2
    The two clauses as written contradict one another.
    In fact the second one more or less cancels the first one out - unless you sublet to a family member.
    That's not uncommon for clauses that have been added without thinking and checking how the addiional clause affects other clauses.

    The first one does say that you can't 'underlet' part of the flat without written permission of the Lessor.
    (Such clause are not written with any punctuation you have to add it yourself. ie. "Assign, transfer, underlet, or part with or share possession of, any part of the flat ....").
    With such written permission from the Lessor then you can underlet.

    The second one contradicts that and says that even with such written permission underletting wouldn't be allowed except to a family member.

    I doubt that it was intended to nullify the first clause in that way, it was probably an attempt to prevent business use, use as an Airbnb, etc..

    However as it stands written permission from the Lessor should still allow you to have a lodger.
    Although not specifically stated there, such written permission would effectively also show their agreement to waive the second clause.

    Comment


      #3
      I was a bit confused by the lack of punctuation. So the permission statement applies to the whole clause? I assumed it applied to the second clause on underletting the whole property.

      "Assign transfer underlet or part with or share possession of any part of the flat (as distinct from the whole) in any way whatsoever and will not underlet or part with possession of the flat as a whole except by way of assignment or transfer without the previous consent in writing of the Lessor such consent not to be unreasonable withheld"

      Comment


        #4
        "Assign transfer underlet or part with or share possession of any part of the flat (as distinct from the whole) and will not underlet or part with possession of the flat as a whole except by way of assignment or transfer without the previous consent in writing of the Lessor such consent not to be unreasonable withheld"

        The syntax of the above should be read so that:

        (a) Assigning transferring underletting or parting with or sharing possession of any part of the flat is absolutely prohibited

        (b) Underletting and parting with possession of the whole which does not amount to a transfer or assignment is allowed with consent

        (c) Transfer or assignment of the whole does not require consent

        That is sorting out the syntax. To interpret (a) (and also (b) which I will ignore as irrelevant to this thread) we need to know what "possession" means. In law, it is not just another word for "occupation", though it can mean that. Explaining the difference between "possession" and "occupation" requires an essay. In brief, occupation is just a matter of physical presence, while possession is wider and includes questions of control. A lawyer may tell you that possession is indivisible and cannot therefore be shared. According to that interpretation the OP's statement that "the first covenant may not be contravened by a licence agreement to a lodger as possession is not in effect being shared" is correct. (A careful conveyancer wanting to prohibit taking in lodgers would rewrite the clause to prohibit sharing occupation and parting with possession, though that would strictly include sharing with family members who were not tenants.)

        So far so good, but what about:

        "Not to use the flat nor permit the same to be used for any purpose whatsoever other than as a private dwelling house in the occupation of one family only"

        "Family" can be a very wide word. It has different definitions in different statutes, but none of those will help when the word appears in a legal document. Googling has not come up with anything on whether a lodger is part of a family. I am inclined to think the argument that he is would fail as extending the definition too far.

        So, what is the position if a lodger cannot be a family member? As pointed out, the user clause conflicts with the alienation clause in that the user clause prohibits lodgers which the alienation clause appears to allow. The question is which clause should prevail. I am not sure I know the answer to that, but I am inclined to think that any answer should favour the leaseholder.

        Comment


          #5
          Thanks. That's very helpful. Lawcruncher's assessment is of the syntax at least is my conveyancer's understanding. It's a little hard to know what to do. In order to proceed with the purchase I would like to have reasonable assurance that taking on a lodger at some point in the future would not contravene the lease in a manner that's either going to invalidate buildings insurance or risk repossession.

          Comment


            #6
            Lodgers live in the leaseholder's home ( or rental tenant ) and do not have any legal rights to remain in the property after 28 days notice to leave is served by leaseholder ( or rental tenant ). Therefore the conditions in the Lease do not apply to the lodger.

            Comment


              #7
              I get how that relates to the first covenant - but the second?

              Comment


                #8
                Originally posted by anothercanary View Post

                I get how that relates to the first covenant - but the second?
                I doubt if any freeholder could prove that a lodger is a "second family",

                Comment

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