Use Class v. user covenant

[rba1]

Hi All,

I have three years left on a lease that I recently assigned for use as a barbers shop. I want to change the use of the shop to a different trade which is within the same planning permission class as the original use (A1).

The user clause in the lease only specifies Barber shop and does not mention any other use within the same planning class. Can my landlord object to this? if he does is this unreasonable? Or would I not need permission from the landlord as the use is within the same planning permission class? What would I need to do to gain permission from my landlord?

Many thanks in advance.

[davidjpowell]

If your user clause is qualified such as for use a Barbers Shop or any other use with landlords consent, not to be unreasonably withheld you would be ok.

Otherwise you are almost certainly stuck with no right to change the use.

However, it would be in your landlords inreerst to allow this. The reason is that at lease renewal when you considering Market Rent the valuer has to consider what a Barber would pay for the premises, which restricts demand and typically reduces rental value by 30 - 50%.

Hope that helps.

David

[jeffrey]

1. Distinguish between:
a. what TCPA Use Classes allow; and
b. what lease covenant allows.

2. If you hold a lease which restricts use to barber, that's what binds you unless L consents to change. Use Classes are irrelevant for these purposes. It would be different if lease restriction referred to "any use within class A1".

3. Re change of use consent: see s.19(3) of LTA 1954. L cannot demand lump sum for giving consent if change does not involve any structural alterations- but L can charge legal fees etc. plus "a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to him..."

4. [posted before I read davidjpowell's post #2]

[rba1]

Many thanks,

So I need to obtain landlords consent. Is this a matter to be dealt with by a solicitor or would I be able to approach landlord directly?

If I just changed the use without his consent, how could he enforce the user clause and what time scale would his enforcement action usually take?

[jeffrey]

I need to obtain landlords consent. Is this a matter to be dealt with by a solicitor or would I be able to approach landlord directly?
You can approach L direct, but you will probably be asked to settle Deed of Consent (if L is prepared to consent; may depend on wording of covenant, as David posted).


If I just changed the use without his consent, how could he enforce the user clause and what time scale would his enforcement action usually take?
That would breach lease: possibly exposing you to proceedings, damages claim, even forfeiture- and certainly it would adversely affect your relationship with L. Why run those risks just to penny-pinch?

[rba1]

I have just checked my lease and the permitted use clause reads:

'Use as a gentlemen' hairdressers and any use falling within class A1 of the schedule to the Town and country Planning (Use Classes) Order 1987, notwithstanding any amendment or revocation of that Order, approved by the landlord from time to time, such approval not to be unreasonably witheld.'

The user clause is more broad than I first thought. Would I need then to ask for Landlords consent to change the use from a gentlemens hairdressers into a different use which falls within the same A1 planning permision class or could I do this without?

Many thanks.

[davidjpowell]

You should ask him to approve the change of use. Any refusal must be reasonable for reasons such as good estate management or undesirable use etc.

Regards

David

[rba1]

I dont have a good relationship with my landlord. What would happen if I dont ask him?

[jeffrey]

I dont have a good relationship with my landlord. What would happen if I dont ask him?
When he finds out, he'll probably sue. That will possibly not improve the relationship either!

[rba1]

Many thanks, I will ask for approval. I know that he cannot be unreasonable about approving this. But on what grounds could he say no?

[rba1]

Also, what would the approval be? A deed of consent? A verbal agreement?

[jeffrey]

Many thanks, I will ask for approval. I know that he cannot be unreasonable about approving this. But on what grounds could he say no?
Devaluing of his property, from an undesirable use.

[jeffrey]

Also, what would the approval be? A deed of consent? A verbal agreement?
Oral consent is inadequate; seek either letter or Deed. Deed is preferrable, so as to bind not only this L but also all successors.

[rba1]

I want to change it into a sandwich shop, selling cold food only for consumption off the premises. Any thoughts?

[rba1]

................

[davidjpowell]

You need to speak to your planning office to make sure that this is A1 and class as Food sales.

David

[rba1]

Many thanks for your reply.

Yes I have done this and it lies within class A1, the same as hairdressing. I also have a further sandwich shop in the same council controlled town and this is also A1.

Would this use be considered as undesirable? I dont think so. On the grounds of estate management the landlord only owns this shop and there are no other sandwich shops within a quarter mile radius.

I dont have a good relationship with the landlord but cannot see why he would unreasonably with hold consent for this.

Whats the best way to start, I was going to speak to my solicitor tomorrow and get him to write to the landlord or landlords solicitor?

[rba1]

Also do you have any idea how long this consent should reasonably take?

[davidjpowell]

Generally L must reply in a reasonable time period. Sounds like he would have limited grounds to reject.

If solicitors are involved budget 4 weeks I would suggest. Should not take this long, but !!!

David

[Lawcruncher]

Many thanks, I will ask for approval. I know that he cannot be unreasonable about approving this. But on what grounds could he say no?

There are no hard and fast rules here.

If the proposed new use is one that is already carried on nearby, the landlord may object on estate management grounds. If it is something like a fishmonger then it may not be unreasonable to object on other grounds.

You also need to bear in mind that change of use from a barber's shop is (presumably) going to involve some internal changes such as removing washbasins and that needs to be taken into account.