Prohibitive Covenant restricts occupancy

by Readers Question

14:27 PM, 12th August 2013
About 5 years ago

Prohibitive Covenant restricts occupancy

Make Text Bigger
Prohibitive Covenant restricts occupancy

OK This is a complex one for all you experts out there. I rented a property on an AST contract. The property ‘cottage’ is a relatively large property by UK standards. Separate structure, fully self contained, kitchen, reception room(s) bed(s) bath(s). A superior property with a substantial rent and substantial deposit prepaid! Prohibitive Covenant restricts occupancy

Let me start by saying I originate from outside of the EU area and am not familiar with UK housing law or relevant LA taxes or restrictions.

Given that…. I entered into the contract with the assumption what was being told to me was true.

The first inkling I had that a problem existed was when I tried to secure phone service to property, only to be told the property did not exist. At every turn I encountered the same problem. I needed to communicate with local council on the issue. That is when they checked their records and informed me the property I was renting was not properly registered and that it had to be valued and banded?? “Not your problem” they said… “you have done nothing wrong… he would have been caught at some point” Confused, I am trying to ascertain what is happening… all the while having to have my bank account, any official correspondence sent to a ‘care of’ address… being that mine did not exist in any database. So many hassles and instances too numerous to recount… suffice to say a huge pain in the a**

The local council advised me to say nothing to landlord/owner and it would get sorted… Not realizing “getting sorted” was creating a tax liability that up until the point of valuation did not exist.

So three months into the tenancy I receive a notice of NEW valuation and a council tax bill? I am informed that all separate self contained residential dwellings are subject to council tax! Aaah but I tell them I was informed mine was part of the larger property and per the landlord fell under the larger umbrella of the property ie: he paid it as it formed part of his property.

Not so they say… rules changed with council tax implementation in the 90’s

The council at this point are contesting the A band rating (rightly so I might add) given the considerable proportions of the property.

I speak with valuation office who inform me the property is rated A because it has a restrictive covenant a section 52 that lowers the value. They inform me the property should have being assessed Council Tax for the past twenty years but it somehow fell through the cracks… I asked what the restrictive covenant was and I was told to get the property file from the planning department.

Well that was sure an eye opener.. too many twists and turns to mention in this already lengthy post.

Bottom line there is a restrictive covenant that this property was allowed to be converted under the strict accordance with the section 52 provision,  legal document signed by current owner/landlord. This restrictive covenant still in effect restricts the use of the building to ancillary use and family only occupancy. While for all intents and purpose it a self contained dwelling it is not allowed to be used as such outside of expressed use limitations… (my best explanation without quoting official legal text)

I am not the first ‘private” tenants to be in here, two prior that I know of but apparently they must not have been concerned abut having their services in their own name and registered to the individual property. I have no idea how this went undocumented for so long. It is my understanding that a B&B business was being ran from the overall property in the past!! Also not documented!

The final straw was when the owner presented me an electricity bill to pay on the property! It was listed as a business bill. It encompassed a time frame that I was not yet a tenant. I refused saying I needed more accurate accounting.
During the conversation (that became increasingly hostile on his part) I mentioned my unhappiness that I had been presented with a council tax bill and that was also not part of our agreement and I wished a rent credit for the newly formed liability. Unknown to me the local council and valuation office had failed to notify him of the the valuation and banding. I thought him being the owner (reasonable assumption on my part??) they would have informed him. But no…. I was the bearer of the bad news and now I am paying the price. He insulted me in front of my children calling me names such as “dishonest” and “underhanded” the hypocrisy defies belief!!

The harassment was upped considerably at this point. Actions which definitely fall within the scope of harassment.
These are wealthy people with assumed good standing in the community. The behaviour being displayed towards my family is outrageous.

I am assuming there is some form of illegality with regard to my contract. I am most concerned about my deposit. It is in a scheme but I am thinking the contract is null and void anyway and not sure where this leaves me and my family.
To say our ‘peaceful enjoyment’ of the property has been interrupted is an understatement to say the least.

What I find totally unacceptable is he is not liable for back taxes because the Valuation Agency only became aware of it upon my tenancy. The fact that he expressly ignored a legal requirement and profited from it means nothing. It is only valued an A band rating because of the restrictive covenant but the Valuation Office do not police the covenant, they only factor it in valuation, hence he has benefited from his dishonesty. This property is operated for commercial gain… if in fact he is allowed to flaunt the occupancy restriction surely the property should be valued at its income producing worth?

Many things do not make sense to me. The government is making severe cuts to the vulnerable in this country while an obvious abuse of the system and loss of much needed local revenue goes unchecked.

I in the meantime am in the middle of this mess.

It is an absolute nightmare.

What protections do my family have?

Regards

Mary Kane



Comments

Mary Latham

10:30 AM, 13th August 2013
About 5 years ago

In my opinion the AST is still valid because it is a contract between you and the landlord. The fact that he has broken the restrictions has nothing to do with you he may now be forced to give you Notice but he must act within the law and cannot simply ask you to leave.

On the issue of the electricity bill you can only be charged for what you have used at the same rate at which the landlord is charged and a portion of any standing charges. Ask the landlord for a copy of the bill and how he has apportioned your share.

On the issue of Council tax it is normal for a tenant of a self contained home to pay the council tax bill - there should be mention of this in the AST, if there is not you can challenge the landlord but not the local authority - once the property is banded the tax is due and they will hold you responsible because you have exclusive use of the property.

Yes this is a mess and your landlord is obviously angry that you have made the local authorities aware of the fact that he is letting the property, this is not a reason to be rude to you and you should make him aware that you will take legal action if he persists

One thing is very obvious, you can no longer be happy living in this property with your family because your relationship with the landlord has broken down and since you live in close proximity you probably need to find somewhere else. If you do move out and the landlord tries to recover the cost of electricity from your deposit, without showing you the information above, you can raise a deposit dispute and let the arbiters decide. Good luck

Follow me on Twitter@landlordtweets

My book, where I warn about the storm clouds that are gathering for landlords is here >>> http://www.amazon.co.uk/dp/1484855337

mike wilson

16:39 PM, 13th August 2013
About 5 years ago

Reply to the comment left by "Mary Latham" at "13/08/2013 - 10:30":

The problem is that the owner has broken planning law, and he has now been found out. This is not your problem but you should find out the views of the local planning department. They will determine what happens in respect of your tenancy. It would be good also to speak with citizens advice.

Mark Alexander

18:20 PM, 13th August 2013
About 5 years ago

With all due respect to Mike, who has very kindly tried to be helpful in his post above, I know that planning will not be able to help this landlord and that Citizens Advice isn't the way to go either.

The advice given by Mary is spot on, as it should be as she was the first ever person to deliver Landlords Accreditation training in the UK, therefore making her the longest serving too as she's still delivering seminars now. Mary has also recently become a a best selling author so she bloody well better be right 😉
.
.

sam

18:57 PM, 13th August 2013
About 5 years ago

A complex one for you experts out there ? What arrogance.
I am no expert but I dont see whats so complex about this one.
If you dont like where you are, move. Simple. Except the guy is stuck with a cost forever - thanks to you. And you think he shouldnt be so unfriendly ?

If you had consulted your landlord in the first place, you might have worked out an acceptable solution for both of you with a bit of compromise. The fact that he is breaking whatever is not for you to deal with. What a bull in the china shop approach ! American or Israeli ?

** COMMENT ADDED BY MODERATOR - this post was reported for being racially inflammatory at 20:00 on 14/08/2013.

Comments which are deemed to be sexist, racist, sharing illegal or immoral strategies, contain extremist politics or which are generally considered to be offensive and reported by a large number of people will not be tolerated. In this instance we have decided to leave the comment due the the difficulty in moderation because others have commented on the comment and the issue appears to have been overcome. **

Lisé Willcox

22:22 PM, 13th August 2013
About 5 years ago

Hi Mary, wow what a horrible experience for you, I'm so sorry, obviously you have a difficult situation and it's not at all your fault. I bet your land lord is not declaring the income either!

I am a land lord, but the advice has been given, thank goodness you can hopefully secure your deposit. Regards the harassment, as you say you have the right to quiet enjoyment. If you get any more harassment contact 101. Although the police cannot sort out the civil matter if you have any bad behaviour you can contact them regards that, a course of conduct that causes u harassment alarm or distress (diarise it), should instigate some police attention. 3 occasions is listed under the Harassment Act, however if it needs to be one sided not an argument. Also u could try ur local council and see if u have a private rent ream, we have one hear, they are a team who work with local private landlords and local private tenants. They are not the housing team, they tend to deal with inspections and fair rent disagreements. You may find them helpful. Council tax is always applied to a seperate dwelling, for example I have a lodger in my farmhouse, her two rooms and private entrance would be subject to planning, and she therefore would be subject to council tax, however, she uses our part of the house to do her washing, this alone I was told saved me having to have planning and her having to pay council tax... So if u live entirely separately even on the same electricity bill it seems that you are subject to council tax due to the local authority. Personally I'd move out, claim ur deposit back and then bubble him up to everyone, especially planning and tax people! What a nightmare fore you, I wish u well in the future in this country 🙂

Mark Alexander

8:23 AM, 14th August 2013
About 5 years ago

@ Mary Kane - interesting isn't it that all the advice that's been given here has come from landlords? Hardly the villans the press make us out to be hey?

By the way, you don't have to be a landlord to support The GOOD Landlords Campaign - See link below 🙂
.

r01

10:41 AM, 14th August 2013
About 5 years ago

It would have been so simple to contact the landlord at the outset (or his agent) as soon as you had the problem of installing a telephone and all of this could have been avoided and you would now have ‘peaceful enjoyment’ of the property and your telephone installed. It's almost certain one of the previous tenants must have had a 'phone.

You have become embroiled in an unnecessary battle created by your own failure to contact the person actually responsible for the property and services supplied to it - YOUR LANDLORD. Whatever he has or has not done with regard to registering the property is actually his problem, not yours and as I do everything by the book I genuinely have no sympathy with him but also have none with you because of the way you have gone about this. I suspect it clearly states in your contract that you are not allowed to change service suppliers or have anything installed upon the property without the landlord's written approval (not to be unreasonably withheld of course). This includes drilling of holes in the walls for a telephone. In one property I now have two cable phone entry points where a stupid tenant failed to contact me and allowed the phone people to drill through a "tanked" wall for the second one. This caused a serious ingress of water and now there is a damp problem which will take ages to dry out where one never existed before . I have to now accept a much lower rent from the next tenant while it dries out - would you want to pay full rent for a "damp" room????

Given the situation you have now created, the advice given by Mary Latham is correct but it would have been nice if she'd said the above too, so that you and any other tenants reading this article are under no doubt that they should not install, have holes drilled, knock down walls (just because they can), change or adjust anything in the property without the landlords specific written approval, after all, it is the landlord that owns the property and carries full liability for it, NOT the tenant.

R

mike wilson

11:23 AM, 14th August 2013
About 5 years ago

Again I think all the commentators have concentrated on the landlord tenant issue and not the real issue. As I read the initial story - the landlord had a 'cottage' built within his main house grounds. He got planning permission to do so but there was a restrictive covenant - that it could only be used for family use? This covenant is crucial. I can speak from experience with a farming employment covenant. Break the covenant and you break planning law. The planners could if they wish tell you to demolish the building. In practice they rarely take these draconian powers. But now given that the landlord broke the law in renting out the property then the lease cannot legally exist. Unless there is a legal expert out there to say otherwise?

Hence my comment that the tenant needs to understand what the planning department will do.

The planners have in their power to accept the position and will usually extract some form of recompense. Now lets see there is all that past council tax etc ... Equally they are unlikely to make someone homeless... Also perhaps there was something in the covenant which wasn't as prescriptive ....and could be interpreted differently. Hence it is crucial to understand what the planners will do - contact the head of planning in the council - you have already accessed the files so they know all about it.

Now you can understand why the owner/landlord was angry. He knew he was breaking the law. Your innocent actions have caught him out. That is not your fault. What is your concern is what the authorities will now do. That will determine whether you can stay. Of course you may not wish to.

Then there is the issue of harassment. I think you need to report that to the police immediately. There intervention will prevent further incidents. Keep records. And explain the whole story to the police. They need to understand motives.

That brings me to another interesting point. If the landlord was not in planning law allowed to rent out his property, then the lease is illegal. And therefore you don't have to pay anything. That is why I said talk to citizens advice & a lawyer.

Mark I think you missed this point. The issue is whether the landlord broke planning law. If he did that issue has to be resolved. You need to know whether the lease is legal or not.

Oh and by the way I see this issue as identical to a landlord who breaks HMO law.

Mary

11:43 AM, 14th August 2013
About 5 years ago

Sam... Yes I am an American and proud of it. You are suggesting that only American's or Israeli's want a deal that is 'on the up and up'? Or is that we are the only nationalities that would find this to be a complex matter? Arrogant and ignorant to boot right?
That kind of attitude does nothing to defray the belief (held by many) that private landlord's in the UK are a bunch of greedy, self serving, con men.
If you wish to run a legitimate business venture then you have to comply with the regulations...A business for profit...you reap the rewards...the cost is compliance with the law...
I as the 'customer' am entitled to a level of service...a level that has been sadly missing in my situation. Am I concerned that the landlord will now have an ongoing tax liability upon my exit? Absolutely not! I am supposed to feel sorrow, guilt? What I do feel is outrage and so should all the local citizens of the community. The local Council has been deprived of much needed revenue!
Sam... in his apparent wisdom would promote a 'side deal' with the Landlord which by my reckoning would result in being complicit in a tax evasion scheme!
I find it ethically and morally reprehensible that a person would shirk (evade..defraud..etc) his tax liability for 20 years!
I have no problem paying taxes on a property...I do have a problem with misrepresentation!
I entered into a contract that was restricted from being used for that purpose (unknown to me at the time) in addition it was NOT valued or banded as was a requirement for the past 20 years.
At the time I entered into that agreement there was no tax liability as the property did not exist. My contention is the status of the property at the exact time I entered into the agreement. The actions on the property are all retroactive, subsequent actions, to my signing of the contact.
Mary.... Respectfully, how is a contract based on a prohibited action enforceable? If I was privy to the status of the property perhaps I could reason the validity but the obvious misrepresentation and deceit make me question the illegality...I am not familiar with UK contract law and perhaps only upon clear enforcement action by planning would it be deemed an illegal contract?
Sam...being an "arrogant" American I do imagine this to be complex.
I hope in the future that subsequent posts denigrating particular nationalities are strongly discouraged...
On a final note I as an American do not always support the actions of the United States Government and will too speak out if my government is "Arrogant or Oppressive" Despite the bad rap we do believe in "We the People"
That being said this housing/tenancy forum is no place for snide comments or international political agenda.
Thanks for any constructive input.

Lisé Willcox

12:42 PM, 14th August 2013
About 5 years ago

The AST is safe for 6 months full stop. If you are forced to to go because of LL within that time you can sue him, eg for removal costs, lossess incurred. He is the one liable.

An AST can be used on any property even a business one, the fact that its in breach of planning law is not the point, that is between the planners and the LL.

If you have a valid AST you have rights for the first six months and after that it becomes a rolling periodic tenancy usually with 2 months notice being given by LL.

Planners take ages to do anything, but pay your council tax band A money as the council tax people are quick on that stuff!

Do not worry about what the planners will do, that's not ur headache, it's ur LL and serve him right!

I checked this with my solicitor just now when he rang up for advice on poultry! Lol not that I'm an expert on hens but he is on contracts!

1 2 3

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Pragmatic and straightforward commercial approach

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More