Covenant to use private property prevents use as an HMO?
Author: adminThere is no uniform statutory definition of “dwelling” or “dwellinghouse”. Under the Housing Act 1988, a room in a house in multiple occupation is capable of being the tenant’s “only or principal home”. Under the Finance Act 2003 on the other hand a property must be self contained, having its own sleeping quarters, sanitary facilities, cooking facilities an independently controlled space heating, as well as its own access. in order to be a dwellinghouse.
In the case of Caradon District Council v Paton (a case about the use of a property as a holiday let), Latham LJ emphasised that covenants need to be construed in their context. With this in mind, it’s necessary to look at the words and view the surrounding the covenant and probably the age of it. For example, a covenant not to use the property for any noisy or offensive trade or business and only to use it as a single private dwellinghouse, imposed before the strict planning rules that now govern most areas were imposed, at a time when there was nothing (other than covenants) to prevent the house next door in a residential street from being turned into a pub or a factory, was probably intended simply to ensure that the property was used only for residential purposes, including HMOs. On the other hand, a covenant to use the property only for the purposes of a single private dwelling, imposed on a house in a residential area in an era where there would be no realistic prospect of it being used for anything other a residence because of planning rules might well be construed as prohibiting use an HMO.
Even if it is not clear, then think about enforceability. HMOs tend to be grouped together. Are a significant number of properties on the street already being used as HMOs? If so, what detriment would it be to the person with the benefit of the covenant if this property were to be used as such?
If in doubt, you should seek the advice of a planning consultant
