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  1. #1

    Default Property defined as "single private residence"?

    Hi,

    I am the owner of a flat in a block of 9, which is a leasehold under a freehold (I have a 1/9th share which i understand is quite standard).

    I have been considering letting the property out, but within the lease agreement there is the following term:

    "Not throughout the term to use or occupy or permit to be used or occupied the demised premises otherwise than as a single private residence and not to do or permit...etc etc"

    I have tried to research a clear definition of what "single private residence" actually means in respect of a leasehold property but no joy so far. Does it mean that the property is specifically prohibited under the lease terms from being an HMO?

    Given the flat is located near great transport links and also a university, there is a high proportion of young professionals and students in the area to let to.

    Any assistance most appreciated.

    Many thanks,
    ant

  2. #2
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    It means you can't have lodgers, or I believe sharers. A tenant would be okay.

  3. #3
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    The simplest solution would be to ask the freeholder how this provision should be interpretated.
    Unsure how a Leaseholder of 1 flat in a block of 9 can appear to have 1/9 of freehold.I suggest OP may be confusing Freehold with block management rights.

  4. #4

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    Thanks for the replies chaps, just trying to fathom what it actually means in terms of a rental.

    Presumably I could rent to a family, i.e. one family.

    What about 2 or 3 students or young professionals? I know that would fall under being an HMO (in the case of 3 sharing), but is this term used to specifically preclude the flat being used as an HMO?

  5. #5
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    Quote Originally Posted by antj View Post
    Thanks for the replies chaps, just trying to fathom what it actually means in terms of a rental.

    Presumably I could rent to a family, i.e. one family.

    What about 2 or 3 students or young professionals? I know that would fall under being an HMO (in the case of 3 sharing), but is this term used to specifically preclude the flat being used as an HMO?
    HMO= House in Multiple Occupancy. Multiple is the opposite of single isn't it?

  6. #6
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    "Single private residence" means something like one family only, with "family" being given a generously wide definition, but not so generous as to include students or young professionals sharing.

    HMOs do not come into it.

  7. #7
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    Quote Originally Posted by Lawcruncher View Post
    "Single private residence" means something like one family only, with "family" being given a generously wide definition, but not so generous as to include students or young professionals sharing.

    HMOs do not come into it.
    Surely, if we are defining 'a single private residence' as a home shared by a group of related sharers (ie a family), as opposed to a group of three or more unrelated sharers (by its nature an HMO, albeit not necessarily licensable), then I think HMOs do come into it. Unless HMOs are specifically prohbiited in the clauses relating to how the property may be let, I do not think they are necessarily out of the question.

    OP will indeed need to ask the freeholder to clarify this before turning his flat into a set for The Young Ones, however, I would not have defined the term 'single private residence' to mean the the same as LC in any case. I may be wrong, but I would have thought it meant:

    single as in a single/joint contract - as opposed to the property being divided up into rooms rented on an individual contracts/separate leases
    private as opposed to leased to local authority/council
    residence as in someone's home, as opposed to commercial/ business premises, e.g a shop.

    On the basis of the above interpretation, I would not assume a group of young professionals or students would be prohibited as long as they lived 'as a family group' i.e. shared the flat and all its facilities in a joint tenancy and were jointly responsible for the rent, bills, CT, rubbish disposal, etc. No locks on bedroom doors.

    As any other tenant, they would also need to comply with other conditions of the lease (e.g. no pets, restricted hours for noise, etc) just as OP would if he lived there himself.
    How is education supposed to make me feel smarter? Besides, every time I learn something new, it pushes some old stuff out of my brain. Remember when I took that home winemaking course, and I forgot how to drive? Homer Simpson

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    What I meant was that the statutory definition of an HMO cannot be brought in to decide what the words in the lease mean.

    "single" means "not more than one" and qualifies "residence".

    "private residence" is to be contrasted with other residential uses such as boarding houses or nursing homes.

    The words chosen are not entirely felicitous and would not earn grade A in the Lawcruncher school of drafting. What is implied is some notion of occupation and it would have been better spelled out - something like: "Not to use the property other than as a residence in single family occupation".

    There is a very sound test which can be applied. If in the kitchen cupboard there is a packet of cornflakes which has written on it: "Suzie's. Keep your thieving hands off or die" then the covenant is being breached.

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    Quote Originally Posted by Lawcruncher View Post
    What I meant was that the statutory definition of an HMO cannot be brought in to decide what the words in the lease mean.

    "single" means "not more than one" and qualifies "residence".

    "private residence" is to be contrasted with other residential uses such as boarding houses or nursing homes.

    The words chosen are not entirely felicitous and would not earn grade A in the Lawcruncher school of drafting. What is implied is some notion of occupation and it would have been better spelled out - something like: "Not to use the property other than as a residence in single family occupation".

    There is a very sound test which can be applied. If in the kitchen cupboard there is a packet of cornflakes which has written on it: "Suzie's. Keep your thieving hands off or die" then the covenant is being breached.
    That made me smile, but I am still interested to know why, if 'single' qualifies 'residence' rather than implies 'person' or 'family', a group of unrelated but communally-living joint tenants should automatically be excluded.

    I agree that in practice the freeholder would probably prefer not to have three students living/partying there, but how does the wording exlcude them if it relates to the property rather than to the tenancy which may be granted in respect of it?
    How is education supposed to make me feel smarter? Besides, every time I learn something new, it pushes some old stuff out of my brain. Remember when I took that home winemaking course, and I forgot how to drive? Homer Simpson

  10. #10
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    Let's look at the clause without the word “single” in it:

    "Not throughout the term to use or occupy or permit to be used or occupied the demised premises otherwise than as a private residence..."

    That makes it clear that it is a user clause and not a clause that deals with whether sub-letting or the like is permitted and if so on what conditions.

    If you put the word “single” back what happens? It is still a user clause. It just reads a bit awkwardly because we have to decide what a “single residence” means – I think we can ignore the word “private” to get to the point. Looked at out of context “single residence” means “single place of abode” which is equivalent to “not more than one place of abode”. If we put that in the clause we get:

    "Not throughout the term to use or occupy or permit to be used or occupied the demised premises otherwise than as not more than one place of abode..."

    Unless we are to argue (and it would be with difficulty) that it means not to subdivide the property, that is the same as saying that the flat is not to be used as two or more flats, which is a nonsense.

    We are therefore forced to concede that as drafted the choice of the word “residence” was unfortunate. However, it is not so unfortunate as to render the clause meaningless. If we ask what the tenor of the clause is I think it can be re-written thus:

    "Not throughout the term to use or occupy or permit to be used or occupied the demised premises otherwise than as a private residence in a single occupation".

    “Single occupation” is not the same thing as “occupation by one person”. We therefore must have the possibility that where a flat is occupied by more than one person the occupation can be single or multiple.

    What is multiple occupation? We have some guidance from the courts. I quote from this very site: http://www.landlordzone.co.uk/HMOs1.htm

    There is no single criteria [sic] to decide if a single household is present. However, in 1995, the Barnes v Sheffield City Council case provided nine 'helpful indicators'.
    a. whether the persons living in the house came to it as a single group or whether they were independently recruited;*
    b. what facilities were shared;*
    c. whether the occupants were responsible for the whole house or just their particular rooms;*
    d. whether individual tenants were able to, or did, lock other occupiers out of their rooms;*
    e. whose responsibility it was to recruit new occupiers when individuals left;*
    f. who allocated rooms;*
    g. the size of the property;*
    h. how stable the group composition was; and*
    i. whether the mode of living was communal.

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