more specifically, was it a breach for a person who did not construct a supernumerary house, but it subsequently become the owner of the land in question to suffer? The house to remain. In other words, was the breach once and for all breach committed only by the person constructing it, or was it a continuing breach committed by every successive owner who does not remove it? The high court judge in this case, paul Matthews noted that an owner for the time being who erects a supernumerary house clearly commits a breach of such a covenant, but the position of a successor entitle who does not erect the house but suffers it to remain and does not remove it is more difficult. The phrase shall be erected could simply refer to the act of construction, but it could also possibly refer to the fact of existence, thus, meaning shall stand directed or even shall be suffered to remain as ever in this case, the court will sometimes look at previous judgments such as Powell versus Hemsley, and will ultimately decide that the issue based on the court's own interpretation of the covenant construed on its own terms and in its own context. So, the court did note that there were user covenants which we're in the relevant covenant which in effect, would involve if breached a continuing breach. However, the covenant that we've just referred to restricting building any additional dwellings was not such a covenant and the court was satisfied that this case stood on a similar footing to that in Powell versus Hensley and the covenant in this case not to build more than a certain number of houses was was broken when the supernumerary house was built, it was not broken at every moment there. After that the owner for the time being failed to remove it. Okay. There's another issue which is perplexed the courts over the years, and this is the question as to whether the word a In a covenant means one. What do I mean by this? First of all, just in context, I refer to a case from 2004 Martin vs David Wilson Homes. The covenant in this case prohibited carrying on the land or any part thereof or in any building or buildings notice the word plural, their buildings erected or to be erected there on any trade or business whatsoever, and not to use or permit or suffer any buildings erected there on or any part thereof to be used for any purpose other than as a private dwelling house. Notice the word buildings in plural was used twice in this case, the Court of Appeal ruled on the construction of the deed, that the indefinite article a private dwelling house contained in the restrictive covenant was merely a restriction as to the manner of use. It was not a limitation on the number of dwellings permitted on the plot. This case formed the backdrop to the next case that we will be considering in this presentation called re Samsung's application. In this case, there were covenants in question, but the proposed development was in effect an extension of a terraced house and there's also a proposal to construct a single story kitchen extension at the rear of the property. The relevant covenants were restrictions one and 2, restriction one not to use buildings erected or to be erected on the land for any purpose other than as a private dwelling house. So, clearly, the Upper tribunal of the lands chamber in this case said that restriction one did not prevent the proposed development, since that was to be used also as a private dwelling house, it might have been different if the extension of the property had been used for a purpose other than as a private dwelling house. The other point was, there was a covenant not to erect any buildings of any kind without previously obtaining the written consent of the vendors to the erection of such buildings and the previous approval of the plans for the same. So, in a restrictive covenant to, there's an express reference to buildings in the plural. But going back to The issue of Covenant # one the covenant not to use the property for any purpose other than as a private dwelling house. The upper tribunal was satisfied that in the context of the provisions of the campaigns reference to a private dwelling house. The upper Tribunal decided that in the context of the provisions of the conveyance, That reference to a private dwelling house in covenant number one did not mean a single dwelling house. Instead, it meant that any building erected or to be erected on the land shall only be used as a private dwelling house, including ancillary buildings or structures such as a garage shed or conservatory. The upper tribunal made the point. If the drafts, person had wanted to say build one dwelling house and one dwelling house only, then they would only have needed to take at least the following steps first. It should put that cloth separately in the covenants from the user clauses, then it should refer to the erection of one dwelling house only, not the use of buildings, and also there would be no reference to the use of buildings in the plural. So, some drafting tips which were added there by the tribunal. Next, the issue of onerous freehold restrictive covenants, and what is curious is that if we look at leases, particularly leases of flat and apartment, they often contain longer lists of covenant than is the case with freehold transfers. One primary reason why there is such a distinction is that it is often easier to enforce positive covenant against successive owners of a leasehold title than it is for a free whole title. So, I don't wish to belabor the point in that, but leases will often contain a mix of positive and negative covenants, negative in the sense not to do something positive in the sense to actually do it. So, in the context of leases that can include covenants to repair the flat to pay a service charge and pay a ground rent, it can also be a negative covenant not to use the flat other than as a private residence. But the case that we're looking at now we won 41 a Johnston's road was curious because, because the case concerned a single double fronted, two story victorian residential property that had been converted into two self contained free, whole residential units divided vertically and access to the front garden and a single central front door, which led to a communal hallway with separate internal doors. What was curious is that one of the freehold owners had the benefit of restrictive covenants which bound the other freehold unit. And in the schedule of covenants were the following not to use the premises other than as a private dwelling house in the occupation of a single family, which is a type of covenant you might see in certain older stout leases, but how about these covenants Not to keep more than one domestic pet on the premises at any one time, not to play any musical instrument or loud music after 11 p.m. Without the permission of the owner or occupier for the time being of the adjoining premises, not to alter the structure or external appearance of the property or erect any walls, hedges, fences, or Garrett without the consent of the transfer er or her success is entitled. Now those covenants restricting keeping of pets, playing loud music, not to alter the structure or exterior, a huge type of covenants that I would expect to see in a leasehold title, Not a free whole title. Plus they were worded in such a way that the owner of the adjoining unit could, in their absolute discretion refuse to give consent to any of the prohibited activities. So three covenants that refer to on the slide were modified On an application made to the Upper Tribunal under section 80 four of the Lower Property Act, which I found quite surprising because ordinarily Section 80 foreign applications are usually made by developers in the face of opposition from those with the benefit of the covenant. But the reason why this case had ended up in the tribunal was because it had become impossible to sell the freehold residential unit that was bound by these covenants and it also had a very, very negative impact on the value of that unit. So the tribunal noted that in fact, purchases had withdrawn from the purchase of that residential unit once they had seen what was contained within the schedule of covenants binding that unit. So what the tribunal decided to do was to modify these covenants so that there was an express mention as a result of the variation of the covenant as ordered by the tribunal. That consent or permission could not at any time be withheld whether it be to keeping a pet, Playing Loud music after 11 pm or altering the structure or external appearance of the property. It's quite unusual to come across onerous covenants, but that was an example of them and we will now move on to the issue about missing conveyances. So when you have a missing conveyance, you then need to then consider whether or not we can find some other evidence of the terms of the missing conveyance. Now, I have thought for many, many years that a reasonable step for a purchased convinced her to take would be if there are adjoining plots that were sold off by a common vendor, particularly if the sales had taken place within the reasonable proximity and time from each other to obtain a copy of another conveyance which is available but registered against another plots on the estate. In persimmon though, the court took a different view. Now the case concerned A conveyance that was missing, dated eight November 1983. It named Kenneth johns as vendor in those days, mandatory, used to cite the wording of the covenants on the title, but bearing in mind that the covenant was missing, they'd only refer to certain aspects of the conveyance. So they mentioned the covenant, not without prior consent of the vendor, which consent, expressly shall not be unreasonably withheld to construct or place any buildings or directions on the property. Now, the conveyance of the adjoining plot was dated the following day and that expressly mentioned that reference in the covenant to Kenneth john was limited to Kenneth johns only. Not his success is entitled. So the argument went, given the proximity in time between the two conveyances, it's a reasonable conclusion that the court should draw that the reference in the missing covenant should also limit reference to the vendor as Mr johns, but the High Court judge took a different view. Judge Matthew said said each of the two conveyances was the product of a bargain between Mr Jones on one hand, an entirely separate purchases of the other and Concerned two different pieces of land albeit adjacent to each other. As a result of that, the court could not reach a conclusion as to whether or not the reference to the vendor in the covenant in the missing commands was a reference to Mr johns only. Let's move on now to look at some problematic or potentially problematic leasehold covenants a common theme in recent disputes between landlords and tenants has been the unlawful subletting or sub licensing of premises. Bye. The owners of the lease who are marketing their flats on Airbnb or similar sites and they have a series of short term visitors to the property. Why that's particularly relevant is because leases often tend to have covenants which restrict rights of occupation and also committed user and often also contain provisions which restrict the right to sublet the property, I'm just looking at a sample of some of these cases in this section of this presentation. Yeah. In triple rows versus Bt what you had here was a covenant not at any time to carry on or permit to be carried on upon the property, any trade or business whatsoever, nor to use or permit the same to be used for any purpose other than as a private dwelling house for occupation by one family at any one time. Notice just briefly in That covenant, there's a reference to occupation by one family, It doesn't say one household, also noticed that it didn't say occupation only by a family member of the lessee, the owner of the property. Um There was also a separate covenant not to sublet the whole of the property without landlord consent. Such consent not to be unreasonably withheld or delayed and save the following was permitted without the landlord's consent. So one was the grant of a short short tall tendencies for a duration of no more than six months and the grant of under leases giving effect to a shared ownership scheme or similar or equivalent scheme. The upper tribunal reviewed a number of previous decisions, in particular case of nemcova to which I will make reference in just a moment. And the tribunal in this case, the upper tribunal was satisfied that these authorities demonstrated that the use of residential properties for short term occupation by a succession of paying guests has always been treated as a breach of a covenant requiring use only as a private residence or dwelling house. However, occupation is permitted by a group of individuals living collectively or non paying guests, family members or servants. The word used occupying with the tenant. The tribunal also noticed the similarity with the covenant in this case, with that in nemcova. And as a result, the upper tribunal Reese determination on the facts that the individuals who had occupied the flat for weekends or other short periods after responding to internet advertisements, we're not using the flat as a private dwelling house for occupation by one family at any one time. So by permitting that use the owner of the lease had breached that covenant, the tribunal was not satisfied that the provision of laundry services between settings, leaving breakfast goods for visitors or handling check in and check out which was that not to happen to the flat amounted to carrying on business upon the property. Just a brief reference then to nemcova. This was a case where the covenant was stated not to use the demised premises or permit them to be used for any purpose whatsoever other than as a private residents and the upper tribunal in this case regarded the duration of the occupiers occupation as very relevant. Therefore, in order for a property to be used as the occupiers private residence, there must be a degree of permanence. It's where a person occupies for a matter of days and then leaves. It cannot be said that during the period of occupation he or she is using the property as his or her private residence. Therefore, the granting of very short term letting these days and weeks rather than months as the lessee had done necessarily breached the covenant under consideration. So where a person occupies for a matter of days and then leaves, it cannot be said that during the period of occupation he or she is using the property as his or her private residence. Therefore, the granting of very short term let ing's days and weeks rather than months as the lessee had done necessarily breached the covenant under consideration. Next, I want to refer to the case of reina versus Trip Lark and this involved the sale of a long lease of a flat from MS Rainer to mr Wiz Mayor. There was a covenant in the lease not to assign sublet or part with possession of the whole of the flat without the previous written consent of the lessers. Such consent not to be unreasonably withheld. The key point about this case is that the block of flats was now managed by a right to manage company. When that happens the functions of giving any approvals under the terms of the lease that were previously the functions of the landlord. Now, as a result of statute, specifically The common holding, the sword reform at 2002. Those management functions become the functions of the right to manage company. So prima facie, it is a requirement where the lease requires landlords consent for the consent to be sought and obtained from a right to manage company happened in this case that MS Reiner applied to the RTM company for consent to the assignment, the RTM company of which Mr Wiz mayor the purchaser was then the sole director did not give notice to the landlord Trip Block Trip Lock. The RTM company neither consented nor expressly can. The RTM company neither consented nor expressly refused consent to the assignment. Another key point was that because no notice had been given to the landlord of the application for approval, then the RTM company in any event would not have been in a position to give consent. The reason for this is that when such an application is made to the RTM company, the RTM company cannot issue any consensus. It is minded to do so unless it has notified the landlord of the application and the landlord has raised no objection within 30 days. So this list is in this case not considered having an express provision in the contract, either requiring consent or requiring Notice to be given to the Landlord by the R- 10 company and waiting that 30 day period completion that occurred and it was deemed that Miss reno the vendor had breached the covenant, which said that she as lessee would not part with possession of the whole of the flat without the landlord's previous consent, she had given up physical possession and control of the flat to Mr Wiseman at the purchaser and exceeded all right to legal possession of the flat by completing the contract to assign her interest as lessee. However, The assignment which regime was done by means of tr one was not registered oh, into the landlord's written objections to the registration. And it was common ground in this case that unless and until the transfer was registered, there would be no assignment under the terms of release for the purpose of the covenant because until the purchaser had been registered as the new proprietor, there had been no assignment of the legal estate in the lease. That's something to bear in mind if you're dealing with right to manage company in circumstances where there is a license that is required to assign. But it but also one needs to consider other covenants in the lease which require consent or approval of the landlord. And as I mentioned, the two 1002 Act specifically states the functions of approval devolved onto a right to manage company wants the RTM company acquires the management on the relevant estate. Okay, let's now look at the issue of pet policies. So it strikes me that from the many, many leases that I've read over the years, there could be three different possibilities here. There may be no provision in the lease at all regarding pets, but in the case of leases of flats. That is possibly unusual. I have also seen leases which say that no pets are allowed if the pet causes a nuisance or annoyance or disturbance to adjoining owners, so if there's a well behaved dog or cut, then that should not be a problem. But then sometimes you might get complaints from people saying that the doc barking or the cat fouling in the common parts is a nuisance or annoyance or disturbance. The main thrust of this section, though, is to look at the issue as to when the lease specifically says that no dog, bird, cat or other animal or reptile should be kept in the premises without the written consent of the landlord or a management company. And indeed, this was the covenant which was actually an issue in the Victory Place case, except the consent needed would need to come from the management company. And this was a management company for Victory Place, which was a gated Residential development in London comprising 100 and 46 flats on mason. It's held on long leases and the members of the management company in turn elected its board of directors. The period of 12 years, the company had operated a strict no pets policy at victory place on the basis that that was the majority view of the lessees That in 2014 Mr mrs Kern, who owned a Yorkshire Maltese terrier purchased the lease, having previously been told by the estate agent that having a dog would not be a problem, isn't it? Wonderful when you have the a number of estate agents, I'm not saying all, but who decide that they know what the lease says and they can dispense legal advice anyway. Just that comment aside, it does really highlight the point that people do need to heed the terms of the lease and indeed the solicitors acting for the management company did write to mr Mrs kern in terms that while the management company will consider special circumstances, such as a requirement for a guide dog or assistance dog in the absence of any such special circumstances, then it is proper for our management company client to apply a blanket ban on dogs. Yeah, as far as the court was concerned, the court had to determine whether there was an implication that the management company should behave reasonably in considering whether or not to grant consent. The court also noticed that before making a final decision to refuse the right to keep the terrier who was known as vinnie at the property. The company had at least on two occasions made clear to the purchases that its policy was not to allow pets save in exceptional circumstances. The context here was that the board was carrying out the wishes of the majority of the lessees Victory place in making clear that it would enforce and no pets. The context of this case was that the board directors was carrying out the wishes of the majority of the lassies at Victory Place in making clear that it would enforce a no pets. Rule. Furthermore, the policy that request would be refused, saved in special or exceptional circumstances was neither unreasonable nor irrational. So the attempt to overturn the decision of the company and its policy was unsuccessful. So solitary lesson for pet owners to seek to establish whether or not consent to keeping a pet would be granted before they commit themselves to purchase is an issue that convinces will no doubt over time, if you're dealing with lethal purchase on a regular basis, need to discuss with your client. Finally, I wish to consider the issue of restrictions on alterations. So I want to refer to a case of elder son. And what happened in this case was done remarkably the least contained certain covenants restricting alterations to the flat, which was a ground floor flat, and it was a material factor that The ground floor flat was one of two in a two story victorian house that had been divided into two flats. The relevant lessees, covenants were a covenant, not to cut any of the walls, ceilings, floors, or partitions of the demised premises. A covenant not to make any structural alterations without the previous consent of the landlord and the covenant to keep the demised premises, quote, in good and substantial and tenable repair and condition, and in particular so as to support shelter and protect the parts of the premises other than the demise premises In 2008- 2009, the then lessee obtained planning permission to extend the ground floor flat, so with a couple of notable examples in recent cases, historically, the owner of a flat did not have permitted development rights to carry out alterations. So often the owner of the flat will need planning permission to do works which the owner of freehold house might have permitted development rights to do. But this is not a lecture about planning and permitted development rights as long as there was a formal license for alterations. Now, sometimes a license for alterations can be just in the context of an email granting permission, but this case was while more formal license had been prepared and had attached to its schedule of condition drawn up by the landlord's architect recording the condition of the first floor flat before commencement of any works on the ground floor, and this showed extensive minor cracking to the walls and ceilings in the first floor flat, there was them a license to carry out Alterations to the ground floor that was granted in 2010, and the permitted alterations included removal of walls in the bedroom, in the rear edition, the removal of a chimney breast in the kitchen and dining room. However, the work carried out exceeded what was permitted by the license, so in particular the whole of the stood wall of ground floor level was removed and replaced by a stood petition in the same location, so it was only supposed to be part of the spine wall that would be removed. The chimney breast in the living room was removed and a pair of steel Joyce inserted to support the way the two chimney breasts on the first floor, that was not allowed under the license, The license merely allowed the chimney breast to be removed in the kitchen dining room. Further work was done in the cellar which was converted for use of the bathroom and laundry, which involved lowering the floor and despite the ground floor work being signed off by local authority Building Control In 2011. As a result of various inspections between 2012, it was shown on each inspection that they had been progressive cracking and movement Not recorded on the 2009 schedule of condition there was a task to the original license for alterations. As a result, this matter ended up in the upper tribunal of the land chamber and the tribunal was in no doubt that some of the works including removal of the chimney breast in the front room and lowering of the floor in the basement without the landlord's consent, where breaches of the covenant not to cut any of the walls, ceilings, floors or petitions of the premises. The removal and replacement of the whole of the spine wall on the ground floor was an additional breach of 3.1 of the lease, which was the Continuing obligation to keep the ground floor flat in good substantial and 10 irritable repair and conditions or support the first floor of the building. The damage that occurred was caused by works in particular the withdrawal of support by removing the spine wall. The extensive cracks were severe and indicated significant ongoing movement. However, while those works were undertaken before the current, let's say had acquired an interest in the flat. They were and continue to be a breach of the continuing obligation to keep the ground floor flat in good substantial and 10 notable repair and conditions so as to support the first floor of the building. It was noteworthy about this case is that in many leases, the restriction on structural alterations is often couched in absolute terms, not to carry out any structural alterations to the flat. In this case, it has been phrased in terminology, not without the consent of the landlord. So what we to gain from all these cases, as we just sum up with restrictive covenants, there are a whole range of issues that we could examine as the title suggests here, we're looking at current issues and some of the cases that we have looked at have been historic cases which have provided some background detail to existing cases. Some of these historic case has been cited in the more recent cases and the issues in the recent cases of the ones that we've primarily focused on. We looked at freehold and we've also looked at leasehold covenants. It's also worth mentioning that before we finish The by virtue of section 19 of the Landlord and Tenant 1927. That in essence, in a least not a free whole covenant, but when you have a leasehold covenant, that the lessee will not carry out any works without the consent of the landlord than ordinarily, it's the case that even if the least doesn't mention these words, the landlord may not unreasonably withhold consent. That is a term implied by section 19 of the 1927, at into every lease which contains a qualified covenant, which specifically requires the landlord's consent to such alterations. We have an absolute covenant which just does not to carry out any structural alterations. Section 19 doesn't apply. And so the obligation on the landlord, the lord is not bound by any obligation not to unreasonably withhold consent. So, we've looked at a range of issues during this presentation, and I wish to thank you for joining me and I hope you found it useful. What this does show is that there are so many different issues to consider with restrictive covenants. And hopefully, whether it's a drafting point or an issue of interpretation of a covenant or looking at an onerous covenant, for example, a covenant in the freehold title, which really is more appropriate leasehold title. I hope this presentation will help you better and interpret the provisions of covenants in individual leases and transfers and conveyances, and, hopefully to guide you in your advice with your clients and to help you also decide when a covenant or breach might be at a defect in title. So with that in mind I'll sign off Now, thank you for joining me. This presentation was brought to you by myself, Stephen Desmond, on behalf of Data Law.
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