Are there restrictions on short lets in this lease

[Gordon999]

The lease requires the leaseholder to use the flat " as a residential flat for the occupation of one family".

There is no "one family in residence" when you sublet to anyone for periods of less than 6 months. When you let for 28 days or less you are running a type of one star hotel business and should be paying commercial property rates to local council.

[Tom1966]

Gordon999,

Where does the 6 months come from?

Holiday lets are residential class C3.

Tom

[leaseholdanswers]

ASTs cannot be shorter than 6 months and preserve thier integrity

[Tom1966]

My lease was written in 1976, before ASTs were introduced. It is not possible that my lease requires sublet by AST.

I have now sought qualified legal advice on the matter, and will post once I have an indication of the legal position - probably towards the end of this week.

Tom

[Tom1966]

According to the advice I have been given, whether or not short lets are allowed hinges on whether the term "residential flat" is intended to mean with a degree of permanence, or is intended to distinguish use from non-residential use.

I am helped by the fact that the lease does not provide for any form of monitoring of residential occupancy by the management company.

I am not helped by decisions in previous cases:
"The natural meaning of the expression “residential flats” was considered to be that it referred to flats that the occupier would regard as their residence and that this would not be a natural description of a holiday apartment."

However,
"When attempting to interpret a document the aim is to ascertain the intention of the parties from the words used, considered in the light of the context and circumstances – the factual matrix – in which they appear."

Tom

[leaseholdanswers]

Which is consistent with the advice given earlier. The latter part would have regard to what has been indicated what for example local authorities regard as holiday lets and in London particularly Westminster they say 28 days Toronto is 21 days, and Brighton UK have reluctantly declined to legislate. Check with your local council.

[Lawcruncher]

Which is consistent with the advice given earlier. The latter part would have regard to what has been indicated what for example local authorities regard as holiday lets and in London particularly Westminster they say 28 days Toronto is 21 days, and Brighton UK have reluctantly declined to legislate. Check with your local council.

Agreed. We can add that if the flat is in a block on the seafront of a seaside resort between two boarding houses that that may help the OP's case. Probably not now available, but it would certainly help if when the flats were first sold the possibility of letting for holidays was highlighted.

What we have here is a situation where the landlord wants to stop something which was almost certainly not considered when the leases were drawn up; if it had been considered and the landlord wanted to exclude holiday lettings it is safe to assume that a clear prohibition would have been included. So, the landlord has trawled the lease to see if there is anything which prohibits holiday letting. He found clause 18 quoted in post 1:

"Not at any time during the term hereby granted to carry on or permit any art trade or business on the demised premises or permit the same to be occupied or used for any illegal or immoral purposes or otherwise than as a residential flat for the occupation of one family and not to have or permit to be had any sale by auction or for any meeting for any religious political or other purpose in or upon the demised premises."

It has to be admitted that on a first reading the possibility that that excludes holiday lettings does not leap out at you. However, when you read the decisions on the effect of the word "residential" in clauses like the above it is difficult to disagree with the reasoning. It may be felt that it is unsporting to use a clause to achieve an end it was probably not designed to achieve, but you cannot get away from the guidance of the decisions.

[Tom1966]

My flats are in an inner London suburb, close to the A20 road and very close to a mainline railway station. It is also opposite a Victorian hotel, now a theme pub. My local authority has no planning restriction on holiday homes, and used to give me an incentive to short let through a 10% council tax reduction, but have now removed that incentive.

The flats were built in the 1930s, and the leases are dated 1976, with a 2006 variation extending the term from 99 to 999 years. The lease for the shared areas is dated 1967, and appears to form the blueprint for the flats' leases.

My guess is that between the building being completed and 1967 the freeholder let the flats without restriction and sometime after 1967 the freeholder started selling the flats. With an imposing hotel just across the road, it is my opinion that it is inconceivable the the idea of short lets had not crossed the mind of the original freeholder when forming the lease. Hotels do not work well for families, so their would be a market for short term family accommodation in London, close to a railway station in 1967 and 1976.

Tom

[Tom1966]

Which is consistent with the advice given earlier. The latter part would have regard to what has been indicated what for example local authorities regard as holiday lets and in London particularly Westminster they say 28 days Toronto is 21 days, and Brighton UK have reluctantly declined to legislate. Check with your local council.

Yes - it is entirely consistent with what you have been saying.

No - it is not consistent with what others have been saying.

My council has no restriction on holiday lets for single family use.

[Lawcruncher]

What the local authority's current policy is and, indeed, what the demand for holiday flats in the area is today, is not really relevant. "The factual matrix" you mention refers to the situation when the lease was granted. One of the snags when interpreting leases is that they contain many standard clauses. What you get in a lease is very much dependent on what is in the draftsman's precedents. The rules of interpretation as set out by, say, Lord Hoffman, though not inapplicable to residential leases, do not apply to them in quite the same way way as they do to commercial contracts. That is in part because many lease clauses are well understood or have been much litigated and in part because the terms which the parties to a long term residential lease negotiate are almost always restricted to the absolute basics. The lease will in many cases have already been drafted. Persuading a tribunal or court that it should in your case depart from the decisions on what "residential flat" means is going to be an uphill struggle.

[Tom1966]

What the local authority's current policy is and, indeed, what the demand for holiday flats in the area is today, is not really relevant. "The factual matrix" you mention refers to the situation when the lease was granted. One of the snags when interpreting leases is that they contain many standard clauses. What you get in a lease is very much dependent on what is in the draftsman's precedents. The rules of interpretation as set out by, say, Lord Hoffman, though not inapplicable to residential leases, do not apply to them in quite the same way way as they do to commercial contracts. That is in part because many lease clauses are well understood or have been much litigated and in part because the terms which the parties to a long term residential lease negotiate are almost always restricted to the absolute basics. The lease will in many cases have already been drafted. Persuading a tribunal or court that it should in your case depart from the decisions on what "residential flat" means is going to be an uphill struggle.

That all makes a great deal of sense.

Tom

[Tom1966]

Might clauses in the lease for the communal areas, which appear to form the blueprint of the flat's lease, help my case.

For example:
2(15) The lessee shall not at any time during the term hereby granted carry on or permit to be carried on any art trade or business upon the demised premises or permit the same to be occupied or used for any illegal or immoral purposes or otherwise than as and for a means of access to the flats in the building and of providing services amenities and facilities for the tenants and occupiers of such flats without the consent in writing of the lessor or its agent and will not have or permit to be had any sale by auction or any meeting for any religious political or other purpose in or upon the demised premises

3(1) That in the event of the Lessor at any time disposing of any residential flat or flats in the Building for a lease of more than twenty one years at a premium the Lessor will impose on the person acquiring such interest or interests an obligation at the joint expense to the parties thereto to enter into a Deed of Covenant with the Lessee in the same terms so far as circumstances will then permit as those contained in the model Deed set out in the Fourth Schedule hereto and it is hereby declared that in such event pending the execution by such person of such Deed the lessor will hold the benefit of this covenant in trust for the Lessee.

3(1) seems particularly interesting, because if the term "residential flat" does not include "holiday flat", then the lessor could, in theory, dispose of any holiday flat or flats in the Building for a lease of more than 21 years without the lessor entering into a deed of covenant with the lessee. On the face of it, it seems unlikely to me that this is what was intended by the term "residential flat".

[Tom1966]

This case make a lot of sense to me in defining "residential".

Paragraph 206
Turning to the sort of considerations arising out of Mr Dowding's authorities on the point, the accommodation does seem to me to fulfil those considerations. The flats are used for the sort of living activities that go with residence - sleeping, cooking, washing, laundry, and other ordinary living activities. To characterise the premises as a sort of self-catering hotel, as Mr Jourdan does, does not actually answer the question in issue, but in any event it is not really accurate. The flats have some of the features of a hotel in terms of the booking arrangements, some of the facilities provided and a reception area, but unlike most hotels it has full cooking facilities and washing machines. They are fully self-contained flats, not analogous to hotel rooms. It seems to me to be quite appropriate to characterise the occupation as being for residential purposes. For the time being the occupants are conducting residence-like activities there. That seems to me to be the test (and the answer to the test), not whether they are using them as homes, or even residences. If one focuses on the purposes, they are residential, and are not turned into something else by the hotel-like services which are provided. The shortness of the stay does not affect the characterisation of the occupation.

Tom