Residential dwelling

[niord]

Is there actually a legal definition as to the term "residential dwelling"

The lease on our flat states that it can only be used as a residential dwelling but it doesn't go any further in defining what that is. We have now someone wanting to buy an adjacent flat to use as a holiday home this has got some of the residents concerned that we might also get holiday lets. Which does not seem to meet the term residential dwelling but it seems difficult to get a proper legal definition in English law.

Is there such a definition ?

[Lootman]

I would have thought that a housing unit that is rented out, whether long term or short term, is still a residential unit. After all, somebody is residing there most of the time - it is just that that person changes fairly often.

The usual distinction is between residential and commercial, and they have different types of leases. That in turn reflects the fact that the local council views the two classes of building differently and, generally speaking, a unit is either one or the other. A change of use from one to the other requires an application to the council.

Some councils, particularly in expensive and resort areas, have been taking a dim view of short-term lets, particularly with the rise of Airbnb and other online booking services, which enable property owners (and even tenants) to easily rent out their home short-term whilst they are not there, or even all the time. I have no idea how successful a council can be in enforcing that, and I have certainly had no problems doing short-term lets in the past.

If the lease for your multi-unit building does not specifically disallow sublets and short-term lets, or any kind of letting for that matter, then it is allowed subject to any special rules your council might have. Any attempt to change the master lease to ban all renting would have the effect of devaluing the units, and I would imagine leaseholders would not support that.

[brightncheerful]

Is there actually a legal definition as to the term "residential dwelling"
The lease on our flat states that it can only be used as a residential dwelling but it doesn't go any further in defining what that is. We have now someone wanting to buy an adjacent flat to use as a holiday home this has got some of the residents concerned that we might also get holiday lets. Which does not seem to meet the term residential dwelling but it seems difficult to get a proper legal definition in English law.
Is there such a definition ?

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Residential property law is not my field but having searched my law library, the short answer is yes there is a definition of 'residential dwelling.

Residential use is subject to planning control. per the Use Classes Order 2005, residential is Class C3 " Dwellings, small businesses at home, communal housing of elderly and handicapped people".

Per Uratemp Ventures Ltdv Collins [2001] Lord Millett put it …in ordinary terms residential accommodation is a dwelling "if it is the occupier's home (or one of his homes). It is the place where he lives and to which he returns and which forms the centre of his existence". What he does there will depend upon his lifestyle. He will doubtless sleep there, and will usually eat there and prepare his meals there, but "his home is no less his home because he does not cook there, but prefers to eat out or bring in ready-cooked meals".

The purpose of a Holiday Let is to give the right to occupy the property for a genuine holiday. If it is not a genuine holiday, then it is not a Holiday Let no matter what is stated in the agreement. Holiday Lets are specifically excluded from the rights and protections of the Housing Act 1988

in The Greater London Council (General Powers) Act 1973 restrictions made the use of a property for temporary sleeping accommodation a material change of use from "typical" residential use (as a home for a family or single household); consequently planning permission would have been required. However, per s44 Deregulation Act 2015 introduced a new measure (section 25A) into the 1973 Act, softening the impact of the restriction for individual property owners. The revised provisions state that the use as temporary sleeping accommodation of a residential premises in Greater London does not constitute a change of use if the following two conditions are met:

• that the number of nights of use in the same calendar year does not exceed 90 nights; and
• that the person who provided the sleeping accommodation is liable to pay council tax for the property.

Those amendments mean that a home owner/landlord can provide rooms or their entire property on a short-term let to different occupants for up to a total of 90 days per calendar year, in aggregate, without planning permission. A rental for a period of more than 90 days to a single occupant or occupants is considered a more permanent private rental and is not caught by the rest1ictions. Short-term rental arrangements that exceed the
threshold of 90 days per annum in total is a material change of use and a breach of planning control.

[richlist]

If I'm reading your post correctly, the amendment's only apply to property within The Greater London Council area, is that correct ?

[Lootman]

…in ordinary terms residential accommodation is a dwelling "if it is the occupier's home (or one of his homes). It is the place where he lives and to which he returns and which forms the centre of his existence". What he does there will depend upon his lifestyle. He will doubtless sleep there, and will usually eat there and prepare his meals there, but "his home is no less his home because he does not cook there, but prefers to eat out or bring in ready-cooked meals".

That sounds to me more like the definition of "principle and primary residence" - a concept usually used to make tax determinations. I say that because your cited definitions appear to me to imply that you can only have one residence ("centre of my existence").

But it seems entirely possibly for me to use two homes residentially. I might spend six months a year in each, for instance. I may choose to designate one as primary for tax or other purposes. But they are both residences.

To my mind, a building is a residence if its use is to house somebody. Whether that somebody is the owner or not, or whether it is long-term or short-term, doesn't change that. The opposite would be commercial use, e.g. office, warehouse, factory etc., where living there is disallowed.

Could be both too, e.g. a residential care home, hotel etc. And some buildings have a commercial unit at the ground floor level and a residential unit above it. And live/work lofts have become popular in some places.

[niord]

Thank you for the responses.

We are not in London but sunny Yorkshire and are self-managed.

I have now found a recent case Nemcova v Fairfield Rents Ltd which would on the face of it seem to be a breach of the lease if anybody did try to have holiday short term lets.

That is always assuming Residential Dwelling and Private Residence mean the same in legal terms !

[Lootman]

Thank you for the responses.

We are not in London but sunny Yorkshire and are self-managed.

I have now found a recent case Nemcova v Fairfield Rents Ltd which would on the face of it seem to be a breach of the lease if anybody did try to have holiday short term lets.

That is always assuming Residential Dwelling and Private Residence mean the same in legal terms !

That case was based on the fact that the particular lease for that building banned letting/subletting and demanded that owners live there as their primary residence.

So it might not apply to another building where the lease contains no such prohibition.

If the local council has rules about short-term lets, then that is another matter. But there is nothing universal about leases that says that subletting is disallowed. The lease has to formally disallow it. The rule with leases is that everything is allowed if not formally banned, which is why leases are so long! And indeed, the buyer of this flat may have chosen to buy precisely because the lease allows letting.

[Clitheroekid]

Is there actually a legal definition as to the term "residential dwelling"

The lease on our flat states that it can only be used as a residential dwelling but it doesn't go any further in defining what that is. We have now someone wanting to buy an adjacent flat to use as a holiday home this has got some of the residents concerned that we might also get holiday lets. Which does not seem to meet the term residential dwelling but it seems difficult to get a proper legal definition in English law.

Is there such a definition ?

Using a property for holiday lets would be a breach of the covenant. A `dwelling' implies a degree of permanence, and in any event holiday letting is a commercial business, which is in itself a breach.

The leading case is the 2000 decision in Caradon D C v Paton - http://swarb.co.uk/caradon-district-cou ... -may-2000/ As it's a Court of Appeal decision it carries more weight than the Nemcova case. It also relates specifically to the term `private dwelling' and is therefore more directly relevant to your own situation.

However, it's not clear from your post whether the buyer is simply intending to use it as his own holiday home. If he is I don't think it would be a breach of the covenant, as he is using it as a dwelling in the proper sense of the term. There's no implication that he has to live there full-time.

[Lootman]

A `dwelling' implies a degree of permanence, and in any event holiday letting is a commercial business, which is in itself a breach.

That case applied to a flat sold by the council, and so may not apply universally.

"Dwelling" strikes me as an almost archaic term and I'm a little surprised that so much contemporary meaning was inferred there. The concept of dwelling may indeed connote some measure of permanence but that surely pertains to the use of the property as a residence and not to any individual who happens to spend nights there. So if I let a different person stay overnight for each of 365 days of the year, it is still being dwelled and resided in.

Again, why would leases specifically forbid letting (or not do) if the matter were so cut and dried?

To me, "residential" means that someone resides there, as opposed to it being purely a place of business. And if you were correct then nobody in the UK could ever buy a housing unit for the purpose of doing short-term lets. Yet thousands of people clearly do that, including me in the past. And a company like Airbnb could not exist here.

I've owned three multi-unit buildings each of which, at different times, I offered short-term lets from. None of the solicitors who advised me on those purchases ever suggested that it is universally a "breach of covenant" to do short-term lets. And I never would have bought them if I had been so advised. All that mattered was the the lease did not forbid them. And none of them were former council properties.

[Clitheroekid]

That case applied to a flat sold by the council, and so may not apply universally.

It was completely irrelevant that the house had been sold by the Council. The ruling was solely an interpretation of the wording, and would have been exactly the same whoever had imposed the original covenant.

"Dwelling" strikes me as an almost archaic term and I'm a little surprised that so much contemporary meaning was inferred there. The concept of dwelling may indeed connote some measure of permanence but that surely pertains to the use of the property as a residence and not to any individual who happens to spend nights there.

No, you have failed to understand the interpretation of `dwelling'. The permanence refers to the individual, not the use.

So if I let a different person stay overnight for each of 365 days of the year, it is still being dwelled and resided in.

No, it's being neither dwelled nor resided in. It's being occupied. You wouldn't refer to someone staying in a hotel room as `dwelling' or `residing' there would you? It would surely sound a little odd to ask to speak to "the person dwelling in room 516"?

Again, why would leases specifically forbid letting (or not do) if the matter were so cut and dried?

Belt and braces. Leases are drafted by lawyers who never use one word where ten will do.

To me, "residential" means that someone resides there, as opposed to it being purely a place of business.

It's of no consequence what `residential' means to you, it's what it means in law that matters.

And if you were correct

(I am)

then nobody in the UK could ever buy a housing unit for the purpose of doing short-term lets. Yet thousands of people clearly do that, including me in the past. And a company like Airbnb could not exist here.

The simple answer to that is that the large majority of houses are not subject to such restrictive covenants, so the question would never arise.

And even if there are such covenants many people either don't know about / understand them or they just ignore them. These covenants aren't enforced automatically. It takes (1) someone to complain; and (2) someone to decide to enforce the covenants. In practice most breaches just aren't enforced.

I've owned three multi-unit buildings each of which, at different times, I offered short-term lets from. None of the solicitors who advised me on those purchases ever suggested that it is universally a "breach of covenant" to do short-term lets. And I never would have bought them if I had been so advised. All that mattered was the the lease did not forbid them. And none of them were former council properties.

This could mean one or more of several things:

1. The leases didn't contain any such covenants.

2. They did but you had a duff solicitor.

3. They did, you had a duff solicitor, but you got away with it as nobody ever knew / complained about the breach.

4. You didn't let the solicitor know you were intending to do short-term lets.

All of which render the points made of anecdotal rather than evidential value.

[Lootman]

The simple answer to that is that the large majority of houses are not subject to such restrictive covenants, so the question would never arise.

1. The leases didn't contain any such covenants.

And that is exactly my point. The lease that the OP has may not have any such covenants. Indeed, the OP indicated it does not. So the case you cited probably does not apply, since the lease in your cited case did have such covenants.

There are really only two cases here. Either:

1) Short-term lets are disallowed in all UK housing units, or

2) Short-term lets are disallowed only where the lease expressly forbids subletting, or where the local council disallows them.

If the OP's building lease does not forbid short-term lets, then they are allowed, absent the local council having rules about short-term lets, as some do such as St. Ives in Cornwall.

Which leaves the co-lessees of this building with a problem. If they don't want holiday lets to happen but the lease implicitly allows them, then what redress if any do they have?

[chas49]

The lease that the OP has may not have any such covenants. Indeed, the OP indicated it does not. So the case you cited probably does not apply, since the lease in your cited case did have such covenants.

But the OP did say this:

The lease on our flat states that it can only be used as a residential dwelling

I can see no reference by the OP to the question of whether this is by way of covenant or not.

So I would think that CK's observations are, as they usually are, on point.

[Lootman]

The lease that the OP has may not have any such covenants. Indeed, the OP indicated it does not. So the case you cited probably does not apply, since the lease in your cited case did have such covenants.

But the OP did say this:

The lease on our flat states that it can only be used as a residential dwelling

I can see no reference by the OP to the question of whether this is by way of covenant or not. So I would think that CK's observations are, as they usually are, on point.

My counter argument is that a home that is let out is still a residence, just not for the owner. The requirement that the home be a residence would disallow it being used as an office or warehouse, but does not ipso facto disallow letting as a residence. That is why some leases specifically disallow letting - the phrase I have seen used is that the lease cannot be subletted or assigned.

So it comes back to the definition of "residence". For 32 years I was a landlord who let out properties that were defined as "residences". Every buy-to-let property in the nation is defined as a residence. I would be stunned to learn that we have all been breaking the law the entire time! And if another owner in the building tried to tell me I couldn't rent it out because it was a "residence", and the lease said nothing about that restriction, then I'd fight it.

CK is correct that there may be a written covenant that the home may not be let. But absent that, I don't believe that the statement that "it can only be used as a residence" is broken by letting it out. If it says "it can only be used as the residence of the owner" then that is a different matter. But even then, what if you move away for some reason? Does that mean you have to sell? Such a restriction devalues the property. In fact, myself and a partner wrote such a lease once, for a multi-unit building we had purchased. And we were advised at various points not to include such restrictions, precisely because they would devalue our investment.

[brightncheerful]

From Nemcova v Fairfield (‘the Airbnb ruling’), informed legal conclusion is that in that case the answer was: ‘Yes, the tenant’s short-term let was a breach a covenant’.

"Nevertheless, every lease must be considered in context, and subtle differences in the wording of the covenant, or the circumstances in which the lease was granted, may impact upon future decisions. IIn the meantime, one thing is clear: tenants who wish to use Airbnb and other such websites to let out their property should carefully read the terms of their lease and ask themselves whether the benefits truly outweigh the risks." (Bnc: some editing)

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From Caradon : "The appellant council were the owners of two dwelling-houses previously occupied by tenants. In 1982 and 1983, respectively, the dwelling-houses were sold to their then tenants under the "right-to-buy'' provisions of the Housing Act 1980. Each purchaser covenanted, inter alia, "not to use or permit to be used the property for any purpose other than that of a private dwellinghouse ... ".The council brought proceedings against the respondents, the present owners of the respective properties, alleging that their use of the properties was for holiday purposes only and was in breach of the restrictive covenants. The properties were occupied by holidaymakers under tenancies for short periods and the respondents made only occasional use of the properties themselves. In the court below, the judge concluded that the properties were being used as private dwelling-houses. The council appealed.

The appeal was allowed. The holidaymakers' occupation of the properties was not for the purposes of use as a private dwelling-house and was therefore a breach of the restrictive covenants. A person using one of these properties as a tenant for short holiday lets, lasting some one or two weeks, was not using the property as a private dwelling-house. The concept of using a property as a private dwelling-house involved its use, at least in some way, as a home. The properties were not being used as private dwelling-houses, but as holiday houses. The council had not acted irrationally in seeking an injunction to restrain the breaches of covenant."

"Although there is no direct authority on the meaning of the phrase "use as a private dwelling-house" in the context of holiday lets, there is authority to which we have been referred dealing with the phrase in other contexts. The authority that seems to me to best identifY the nature of the question that is raised by the phrase is that of C &G Homes Ltdv Secretary of State for Health [1991] 2 All ER 841*.

In that case, the Secretary of State had purchased two properties on a new residential estate with the intention of using them to provide supervised housing for a small number of former hospital patients who had suffered from mental disability and who were to be returned to the community under the "care in the community'' policy. The Secretary of State purchased the houses subject to a number of covenants that restricted the user by precluding the purchaser, at any time within IO years of the date of transfer, from carrying on at or from the property any trade or business and from using the dwelling-house "for any ... purposes other than those incidental to the enjoyment of a private dwelling house".

The Court of Appeal held that the Secretary of State's proposed use was not for a purpose incidental to the enjoyment of a private dwelling-house.

The leading judgment was given by Nourse LJ. He, having stated the facts, and having examined in detail a number of authorities in which the use of the phrase "private dwelling-house" had been considered, said at p848G: We were not referred to any judicial definition of a private dwelling house. It seems that judges, no doubt wisely; have been content to say whether, in any given set of circumstances, the description is or is not satisfied. The definition of a private house given in the Shorter Oxford English Dictionary, (1933), is:

"the dwelling-house of a [private] person, or of a person in his [private] capacity." Where the owner himself is in occupation it can usually be said that he is using it as his private dwelling house. But he can still use it as a private dwelling house without occupying it himself, for example where he lets it to another individual for use as his private dwelling house. Use as or for the purposes of a private dwelling house seems to assume that there is at least one private individual who, whenever he chooses, can occupy the house as his own, even though he may not be in actual occup~tion, for example where he allows his children and some friends to live there. On p849E he said: In summary; I would say that if a house cannot fairly be described as someone's private dwelling house it cannot be said to be being used as such."