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

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    #46
    Originally posted by derekunderwood01 View Post
    One other question I had is if the friends have known eachother for years and move in together then share everything, can they be deemed 'one family'? Ive read case where the tribunal had no hesitation in determining an old friend family... I thought it was based around whether they were related or not?
    As someone who has gone through a very similar situation and its still ongoing 18 months later, despite my freeholder investigating and writing letters, it got put on the too hard to prove and too difficult pile.

    As stated the single family use clause is open to interpretation and could fail legally. Examine your lease in detail for-

    1) Subletting/underletting restrictions
    2) Nuisance clauses
    3) Does the lease require carpets, if the flat above has wooden/laminate floors that massively increases the noise levels.

    The environmental health will be able to help you deal with the noise, if they deem it a nuisance, they are unlikely to deem normal moving around as a nuisance but loud music will be.
    If the managing agents will serve a S146 notice, that may make the other leaseholder take notice or it may not, they presumably need the income from the tenants.

    The cheapest and possibly easiest option is to get environmental health to resolve the noise issue for you if they can. If it was a couple with two children above you, there would be little you could do about the noise in that situation.

    Comment


      #47
      Originally posted by Lawcruncher View Post
      In the first instance a section 146 notice should be served. It may not have any effect but will indicate that the situation is being taken seriously.
      .
      But under the CPR ( Court or FTT) they have to look at the letter before action and as explained earlier the S146 has no effect without a determination or admission.

      As to construing the lease there is a strong counterargument as to the intention of the parties which was unlikely to be two unrelated couples.
      Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

      Comment


        #48
        Originally posted by leaseholdanswers View Post
        But under the CPR ( Court or FTT) they have to look at the letter before action and as explained earlier the S146 has no effect without a determination or admission
        I am not fully conversant with the current rules. Can you expand on that please?


        Originally posted by leaseholdanswers View Post
        As to construing the lease there is a strong counterargument as to the intention of the parties which was unlikely to be two unrelated couples.
        Possibly. The starting point in interpreting any document has to be the words used and there has to be an assumption that the words set out the intention of the parties.

        Comment


          #49
          Just to give you guys an update, the management company have contacted the freeholder and he is currently seeking legal advice on this matter of 'one family' only. Ive also asked them to consider the nuisance aspect of it.. which really is the strongest point I have. The trouble is the 'nusiance' isnt anything a court would usually consider a nuisance - basically my apartment is built around the stairwell and every night - night after the above couples are going up and down stairs sometimes 7 times an hour!!! This has been happening for over two years... but apparently courts dont regard 'footsteps' as a neightbour nuisance... but its driving me NUTS!! Ive had to take 3 holidays this year to get away from it and within days after coming back Im angry again.. angry almost every day now! Only thing I can think of is to get unreasonable with the people above as a last resort before I throw in the towel! Tit for tat as they say...

          I simply dont think I should have to move out of the property I own because the selfish lady above has decided to bring her friends in with her...

          ...Whats your opinion on my chances at the FTT guys? What do I do if the freeholder comes back and says they wont enforce it?

          Im lost... and I have no idea where Im going to move to or go....

          Comment


            #50
            Ive been reading through the leasehold tribunal decisions and the last 5 ive read have all considered close friends as part of famiily.... I think I better go back and do my English exam again. No one ive spoken to considers two couples who are friends to be - family, but the tribunals appear to keep saying the opposite - things like: 'in the context of the lease family should be given a wide definition' and that 'the tribunal had no hesitation in determining a close friend to be family'... LHA, I thought you said it comes down to the exact relationship between them?

            Can I take these guys to the tribunal based merely on excessive 'coming and going up and down the stairs' next to my apartment? They have thrown cigarretes onto my property below as well, so I guess that would be deemed a nuisance and breach of lease?

            Any ideas? My chances of getting these renting friends out are looking ever more slim.... especially as they all moved in a the same time..

            Comment


              #51
              Originally posted by Lawcruncher View Post
              I am not fully conversant with the current rules. Can you expand on that please?

              Possibly. The starting point in interpreting any document has to be the words used and there has to be an assumption that the words set out the intention of the parties.
              As a general principle I agree. In this specific area the IOP would look at the context as well as family can have one meaning, aunts uncles cousins etc, which would be absurd to apply to a flat, well in England anyway

              The CPR and Rules for the FTT_PC are online so I will try and summarise these.

              In the first instance both will want the claimant to set out a letter before action starting the issues, the remedies, and the intended action. That should include options to resolve that dispute.

              In the second instance, as set out in the LBA, the parties are expected to resort to mediation or other ADR rather than the nuclear option of Court proceedings or the battlefield tactical nuclear option of the FTT-PC.

              Both can, when considering applications, direct the parties to mediation rather than a hearing.

              The most important effect is that when it comes to costs, which is particularly relevant in the Tribunal, both parties can be awarded costs, and their conduct can be considered. While the rule of thumb in County Court is each pay their own, costs are often recoverable under the lease, both individually and the service charge, and therefore can be considerable, often in full.

              If the Court is asked to consider these, they can, but may well defer to the FTT to determine.


              With section 146, for residential premises the 96 Act and the 2002 Act amended the 1925 Act. I’ll paste in the LEASE explanation, as its quicker;
              A valid section 146 notice cannot be served unless the leaseholder has agreed the arrears or that the breach has occurred; or the breach or amounts due has been finally determined by the First-tier Tribunal (Property Chamber) (Tribunal) or a court or under a post-dispute arbitration agreement. A determination becomes final at the end of any period provided for appeal and the landlord may not serve the section 146 notice until 14 days after that date.
              If the breach relates to arrears, you cannot serve a valid section 146 notice where the amount of service charges, administration charges or ground rent owed (or a combination of all of these) total less than £350, or have been outstanding for less than three years. It is not necessary to serve a section 146 notice if the breach is for ground rent arrears.
              A section 146 can therefore be served but the trickery is that by applying to the court and asking for certain matters to be determined (by the Court or their referral to the FTT), the Court can then validate the S146 notice as part of judgement. If leases allow for the recovery of costs “leading to” a s146, then its prudent to take it to the FTT first as very often that resolves the matter.
              Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

              Comment


                #52
                Originally posted by derekunderwood01 View Post
                Ive been reading through the leasehold tribunal decisions etc
                Your researches have confirmed what your solicitor told you and what has been repeated in this thread. "Family" does not always mean "nuclear family" or "extended family", but can mean something like "household". Of course if you define family as "all the people living under one roof" you would only need to let someone in and they would become part of the family. If a leaseholder advertises for a lodger I think it is going to be difficult to argue that he is going to be part of the family if he moves in. Perhaps the test is whether the leaseholder is making a profit. Even then it may be difficult to distinguish between paying rent or the equivalent and contributing towards expenses.

                The reason courts and tribunals give a wide interpretation to "family" is because there is a perception that it is unreasonable to impose restrictions on leaseholders which are not imposed on freeholders. If the lease defines "family" then of course the definition has to be followed, but any such definition is likely to be incomplete. Any covenant not to use a flat other than in a single occupation or the occupation of one family needs to be backed up by additional provisions prohibiting taking in lodgers or paying guests. Quite apart from interpreting what a clause means, when it comes to the remedy for breach of covenant it has to be reasonable and proportionate. There is going to be an element of "what skin is it off the landlord's nose?". In your case any breach of the covenant you quote does not automatically lead to a nuisance of the type you are experiencing. If the four occupants were quiet you would not have got your lease out to see what it said. Equally, if the occupants were closely related the covenant would be of no use. This is why I say that you need to concentrate on the nuisance element only bringing in the "family" element as an extra string to your bow.

                What you also need to bear in mind is that if you (or as it would almost certainly have to be the landlord) sue for breach of the "family" covenant the issue will be considered on its own. In this respect if successful I do not see on what basis a court could order the two friends to move out. It either has to forfeit the lease (highly unlikely) or award damages which (given as I say that the nuisance element is quite separate) may only be minimal. What you need is an injunction to stop the noise. Since it is a nuisance you do not need to rely on the law of landlord and tenant.

                Comment


                  #53
                  Originally posted by leaseholdanswers View Post
                  The CPR and Rules for the FTT_PC are online so I will try and summarise these. Etc
                  That explains it nicely, thank you.

                  Comment


                    #54
                    Law cruncher - naturally the nuisance issue is at the heart of it and my interrogation of there being 'one family' up there is purely as an means to explain it.

                    Household is completely different to family - where household could be anyone living under one roof, presumably the writer of the lease used the term family for a reason - if friends automatically become family as soon as they move in then presumably the term is rendered pointless - as anyone could be family...

                    Are you saying that we're it to go to the ftt, and they decide they are not one family, that they are not living as one family and that because of that they are causing a nuisance ....that they would have no basis to Remove the second couple?

                    Comment


                      #55
                      Yes one decision in 2012 consider household to include two unrelated people of either sex ( ok LGBCTS people you know what I mean). ItIt is the wording of the lease, specifically, and the term family that you search for, as explained earlier in BAILLI as well, for earlier binding decision.

                      I have them here on Lexus but its better if you do the hard research as you are going to argue yourself as FTT decisions are not binding.
                      Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                      Comment


                        #56
                        The wording of the lease is clear - how much more clear do you want than 'one family only'. Any normal respectful man on the street can see than two unrelated couples living together and paying rent are not - one family, household maybe, occupation yes - but as you say - families.

                        I really don't understand this country anymore - obviously 30+ years on this planet had taught me nothing about the English language.

                        Seems to me everythings against the victim in this kind of situation,,, very sad world we live in where people can inflict such mysery on others through playing mischief with terminology. The law should really be there to protect against thus sort of abuse... The reality is it just makes us all think less about abusing the system ourselves. Potentially I coulead gage in any sort of equally annoying behaviour and these guys would have to go through months/years of payment and expense to get an injunction to stop me doing it.... Nice to know I'm virtually invulnerable to accountability when it comes to the ambiguity of the English language contained within the lease... Bring it on...

                        Comment


                          #57
                          What are my options if the freeholder refuses to uphold the lease or do Anthing?

                          Way I see it I can either take the freeholder to court (at great expense), take the other leaseholder to court myself (at great expense)... Or sell up completely.

                          I'm assuming I can't take them to the ftt without the backing of the freeholder?

                          Comment


                            #58
                            I recognise your frustration so much, I had the same reactions when I discovered that what the lease says is not necessarily what it means but all is not lost.
                            You need to stop focussing solely on the 'single family' clause. But it is relevant.
                            You haven't responded about the subletting/underletting clauses, are they in your lease or not?
                            What does the nuisance clause say? Carpets?
                            You said environmental health are involved, when do you expect an outcome? Keep chasing them, they are busy people, so keep reminding them you need help.
                            Build your case using all the possible options. I think you will struggle to get the freeholder to act on the single family use alone.

                            Comment


                              #59
                              Let's look at the definitions of family in one dictionary, Collins, so far as they relate to groups of people:

                              ...a primary social group consisting of parents and their offspring, the principal function of which is provision for its members

                              ...one's wife or husband and one's children

                              ...one's children, as distinguished from one's husband or wife

                              ...a group of persons related by blood; a group descended from a common ancestor

                              ...all the persons living together in one household


                              These are not legal definitions and you will note the inclusion of "household".

                              Household is defined as:

                              ...the people living together in one house collectively

                              If we combine the last definition with the definition of household we get the following possible definition of family:

                              ...persons living together in one house collectively

                              The key word there is "collectively" which is defined as:

                              ...in a manner that forms a whole or aggregate

                              So, going by our combined definition we have to ask whether these four people are living together in a way which can be said to form some sort of unit. Of course a court is not bound by dictionary definitions as it needs to consider context. But if you want to go by ordinary meanings I think we have to go by dictionary definitions (ignoring any obscure or obsolete meanings) rather than what the man in the street says off the top of his head. If looking at ordinary meaning we find that after all we cannot say with certainty what a family is then there is going to be more uncertainty in court. The plain fact is that, whatever the man in the street may think, a court may come to a different conclusion.

                              However, as has been said, you are focussing far too much on this aspect, especially given the uncertainty that surrounds it and what you can actually achieve even if you establish that there is a breach of covenant.

                              There is not a lot more we can say about what "family" means. We may however be able to make some useful observations if you look at the lease and:

                              (a) see if subletting and/or sharing occupation and/or taking in paying guests/lodgers is covered and, if it is, quote the relevant provision(s)

                              (b) quote from it any provision(s) relating to the use of the common parts, making a noise and not causing nuisance or annoyance

                              (c) quote any covenant by the landlord which requires him to enforce the terms of lease.

                              Comment


                                #60
                                I notice the majority of definitions stipulate that the term 'family' means relations... therefore by shear majority of definition alone family should in all but the most exceptional of circumstances be taken to mean - Relations. ..I do not believe anyone has ever used the term 'family' to describe two couples (as friends) living together in seperate rooms paying rent... in my mind you would have to be mad to define that situation as 'family'.

                                Naturally the 'must not cause annoyance or nusiance to any other owner in the said property' is in there too - and I KNOW theyre in breach of lease on this! ... how to prove this in court is another matter...

                                The only other clause I can find in the lease regarding preventing subletting is the one that says it must used as a 'single private dwelling'... would this cover lodgering or sharing?

                                Comment

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