Lease law: Definition of 'one family only' / 'single private dwelling'?

[derekunderwood01]

Hi guys,

I have a some neighbours above me who moved in to a two bedroom flat above me a while back. At the time I didnt think anything of it but recently there has been a significant amount of noise nuisance. It turned out that there is only one owner above and she is living with her boyfriend, and taking rent from two friends for a room. They share facilities.

I recently complained to the managing agent for the property about this and they have since issued the above owner with 14 days notice to evict the friends who are paying rent as they are in breach of lease through not being 'one family only'. However, It has now been a month and they are still in the property as they are arguing that the term 'family' is not clear cut, and that because they share everything they are effectively 'one family' despite the fact she has already admitted being friends.

The lease strictly says 'Will not use the flat or permit the same to be used for any purpose whatsoever other than as a single private dwelling in the occupation of one family only'

My question is whether their claim to be 'family' would stand up in court? I have asked a solicitor friend of mine who deals in this kind of stuff who has said that the term family is no means clear cut and that it can go both ways.

They are an ongoing nuisance every day now and we are seriously considering paying court fees to have the friends evicted, does anyone have any experience with court cases based around this term 'family'? Can an owner and her boyfriend renting out to two friends really be considered 'one family only'?

I live in London but any advice or experience on this would from elsewhere would be really appreciated.

Thanks in advance,

D.

[Lawcruncher]

It is certainly the case that "family" can have a wide meaning. However, if they are friends and paying rent that seems to me to be exactly the sort of situation that the clause is designed to prevent.

[derekunderwood01]

Lease law: Definition of 'one family only' / 'single private dwelling'?

Hi guys,

We have a owner above us who is living with her boyfriend and has two friends (another couple) staying, sharing facilities and paying rent for a room. Recently they have become an ongoing nuisance and we have reported them to the managing agent. The owner above has since been given 14 days notice to evict the second couple based on the fact they are in breach of lease through not being 'one family' - however they are still in the property and arguing that because they are close and share facilities they should be considered one family...

The lease states '(an owner) Will not use the flat or permit the same to be used for any purpose whatsoever other than as a single private dwelling in the occupation of one family only'

Can two friends staying permanently and paying rent for a room while sharing facilities really be considered 'one family'?

Any advice or experience on cases or outcomes fought in court would be helpful, as we are considering paying the legal fees to have them taken to court and evicted.

Thanks in advance,

T.

[DNM2012]

You might also want to check the lease for restrictions on underletting or subletting part of the flat.
This may be a more clear cut way of dealing with this and at least the management co is acting on this.
The problem you have is proving what you say, and the legal costs will be huge.
The legal definition of family is not black and white, there are grey areas and the other LH argument could stand up legally.

[leaseholdanswers]

This has already been considered at the LVT and based on earlier precedent that while household might fit definitions under #3 above, family has a more obvious meaning and two unrelated friends and the couple might be regarded as a household and families, they are if unrelated, two separate families which would be a breach.

The Manager should be looking at the consent for under letting and the lease and getting counsels opinion, in this case £500 up for that and the noise and looking at action without further dithering.

[Moderator2]

Two related threads have been merged.

[Snorkerz]

I like LHAs answer, but as I have commented on this problem elsewhere, I will repeat . . .

If you are in England/Wales the managing agent can not 'evict' the guests, the only person who can do that is the leaseholder of the troublesome flat. What the agents can do is threaten the leaseholder with forfeiture if he doesn't remove these people - but that is a very long legal process because we are talking about denying someone a home that they have paid for.

I do not think that they would be considered one family. The closest parallel I can think of is in rented housing where more than one 'household' occupy a property - called a 'house in multiple occupation'.

The 2004 housing act says what a 'household' is for this purpose and includes a definition of 'family' in section 258(3) and (4) http://www.legislation.gov.uk/ukpga/2004/34/section/258

[leaseholdanswers]

I would not however take Snorkerz reply as a basis to relax; the 14 day notice , as you say, was served o eh flat owners and is the precursor to enforcement action against the flat owner.

It will inevitably go to the FTT (nee LVT) to consider. Just stick with it. I dare say teh opwner is happy getting a rent from "sharers" and theer is always the threat of it being an HMO for the MA to threaten the owner with a call to the Council...

A sensible owner would meet with you and the tenants to discuss the underlying trigger issue of noise and address that, but they have left it a bit late.

As I say " book'em Danno, Section 146"

[DNM2012]

I have similar ongoing issues with a HMO in the flat above me. The single biggest issue is proving the occupancy. Checking the electoral roll is a good place to start.
The council probably won't be much use in this case as a the current occupancy is not a HMO, owner occupied with 2 lodgers is not a HMO.

[leaseholdanswers]

I have similar ongoing issues with a HMO in the flat above me. The single biggest issue is proving the occupancy. Checking the electoral roll is a good place to start.
The council probably won't be much use in this case as a the current occupancy is not a HMO, owner occupied with 2 lodgers is not a HMO.

Yes I might agree with that as rereading the OP, the owner is in residence, and assuming it is her boyfriend. The two families still applies though.

I am going to have to defy Mrs LHA, the last three months of decaf is making me miss some things " I am a coffee addict and I am proud to say it"

The nub of it though is if they stopped being noisy and behaved in a neighbourly way in the firstplace...

[Snorkerz]

I would not however take Snorkerz reply as a basis to relax;

Do you know, I could have sworn I had included a disclaimer at the start of my post saying something like "I don't know much about leaseholds". LHA does, in fact I hope he won't mind me referring to him as our primary leasehold poster.

I would also just like to stress that the legislation I referred to is not directly linked to leasehold properties, I am not suggesting this is a HMO, I just offer it as an indication of how the law has defined a family in other scenarios.

[Lawcruncher]

There are two aspects to this.

The first is to establish if there is a breach of covenant and the second is what can be done if a breach is established.

As to the first there are three possibilities.

1. The leaseholder is in breach of the covenant quoted. This turns on what "family" is taken to mean. Whilst in the context we have here there are some situations where we can definitely say that a collection of individuals constitutes a family and others where they do not, there is a rather large grey area where uncertainty reigns. An unmarried couple sharing with friends who pay for their room is in the uncertain range but towards the "not family" end.

2. The leaseholder is in breach of some covenant against subletting or sharing occupation. Whether that is the case we do not know as the OP has not quoted the relevant provisions in the lease. However, if there is a breach of any subletting provision (which is a one off breach) it will have been waived if rent has been demanded or accepted since the subletting began. Whether, if the friends are lodgers rather than tenants, a breach of any covenant against sharing occupation is a one off or continuing breach is not a point on which I can offer an opinion.

3. The leaseholder is in breach of some covenant against causing nuisance or annoyance (which would be a continuing breach). Again we not know because we do not know if the lease contains such a provision, though it probably does.

As to the second aspect, if some breach is established what can be done? Here we have the classic case of where the law affords a remedy, but in practice does not make it easy to pursue it, or at least makes it risky financially even if successful.

What are the remedies?

1. Forfeiture. This is unlikely to be obtained because it would be disproportionate.

2. An injunction. Possible if damages are considered inadequate.

3. Damages.

[derekunderwood01]

I might add that the friends, the owner and her boyfriend all moved in together, however only one lady owner is on the lease. Ive read through a few of the tribunal outcomes on the leasehold advice website and theyve said it can go both ways. I just wonder whether the fact they moved in together when she bought the place might allow the tribunal to consider them more as - 'one family'.

Its my impression that it simply shouldnt have been allowed to happen in the first place. Can the managing agent be held liable for allowing a situation to occur that was actually a breach of the lease?

[derekunderwood01]

Id also like to mention that the owner of the property above has already admitted to there being two unrelated couples up there. Would this therefore need to go to a tribunal to decide? Or can the managing agent simply apply for an accelerated possession order and have a judge sign off the court order? ... Is there REALLY a need to seek council on this one as it seems pretty clear cut to me?

Also, does anyone have any idea of the legal costs/time frames for eviction on this particular case?

[derekunderwood01]

Been doing some reading around at it appears (as she has already admitted in writing to having two couples), that after the 14 days notice the managing agent can issue her with a section 146 giving her 28 before court proceedings are due? Is this correct?

Apparrently the lease states that I as the owner below have to pay the legal fees to remove her and uphold the terms of lease (which everyone thinks is ridiculous), and that that will cost over £1000 just for the solicitors opinion on this case. Anyone know a good solicitor?

I've also read that applying for an accelerated possession order is just a matter of filling out a form which can be done by anyone?