As we continue to emerge from lockdown measures and deal with local measures and the short and long term economic impact of Covid-19, local authorities will need to re-assess how services will be delivered for years to come.
The issue in this case was simple:
A long lease contained a covenant not to use the demised premises, or permit them to be used, for any illegal or immoral purpose whatsoever other than as a private residence. There were no covenants prohibiting subletting.
If the leaseholder advertises for short-term lettings via AirBnB and grants a series of such lettings, is this a breach of that covenant?
Nemcova confirmed that she let out her flat for about 90 days a year on short-term lettings, which were almost exclusively to business visitors working in London. She said that she stayed at the flat herself for three or four days a week.
Nemcova argued that the only meaning that can be ascribed to the words ‘private residence’ is whether the flat retained the physical characteristics of a private residence, i.e. the presence of a kitchen, bathroom and living area. Therefore, even when sub letting on short-term lets, the property was still being used as a private residence and so was not a breach of covenant.
The Upper Tribunal determined that it is the duration of the letting that is material to whether the premises is being used as a private residence; there must be a degree of permanence to the occupation:
“I do not consider that where a person occupies for a matter of days and then leaves it can be said that during the period of occupation he or she is using the property as his or her private residence”
Where the occupation is “transient”, the occupier would not consider the property to be their private residence during the time that they were using it. The Upper Tribunal (Lands Chamber) therefore determined that Nemcova had breached the covenant in her lease by using the premises other than as a private residence.
This case is precedent that where a leaseholder grants short-term AirBnB type lettings, this will be a breach of the covenant to use the property ‘as a private residence’.
However, a word of caution! Each case is fact-specific and will depend on the construction of the clauses in the lease and the factual context.
If you become aware that a leaseholder is advertising or granting short-term lets, it is important that you check the terms of the lease carefully. Carry out investigations at the property to try and establish the nature of these occupancies, the frequency of stays, the number of occupiers, and any nuisance caused to neighbours etc.
It is also worth noting that the emphasis on the duration of the occupancy means that this decision does not cover long-term subletting, where an occupier may be in occupation for months or years. (Of course, there may be other clauses in other leases that expressly prohibit sub-letting).
For more information
For more information or advice on subletting, rental agreements and other housing management issues please contact Natalie Moustache on 0121 212 7440 or via email at firstname.lastname@example.org.
The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.