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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10267
Experience:  Barrister 17 years experience
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Hi, I bought a cottage in a National Park in 2006 as an investment

Resolved Question:

Hi, I bought a cottage in a National Park in 2006 as an investment and ran it as a holiday cottage until 2013. My son and his wife moved into the cottage in 3013 and wish to run it as a Bed and Breakfast since its in a popular tourist area. However, the cottage has a Restrictive Covenant as follows: No building erected on the property shall at any time be used for any purpoase other than that of a private dwelling house and outbuildings belonging thereto and trade business or profession shall be exercised or carried on or be permitted to be excercised or carried on or upon the property. The covenant was first introduced in 2004 by the church which originally owned all three cottages including my own and is for the benifit of the the neighbours at each side of the property and appears on their title too.
My questions are as follows:
Since the planning authority require no change of use so the cottage will remain a private dwelling house will my son breach the covenant?
As I operated the cottage as a holiday cottage for 8 years without a single complaint in writing from the neighbours one of which still lives next door (the other side are new) does that set a precident in theeyes of the law?
Is this covenant enforceable if my son applies for planning permission for change of use to a guesthouse so he can let 2 of the 3 double rooms as the property would change to business use from a private dwelling house?
Is this covenant enforecable given that it does not create any more traffic or disturbance than say a family with two teenage children owning cars so 4 cars incluidng the husband and wife?
Is this covenant enforeable as it prevents my son and his wife the right to earn a living that does not materially affect the neighbouring properties?
How do I go about applying for a Court Declaration to test if the covenant is enforceable?
Thank you in advance.
Regards
David
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.
Buachaill :

1. Dear *****, at the outset, you need to realise that a restrictive covenant is a burden running with the land which restricts the user, irrespective of whether planning permission is obtained and irrespective of whether you might have breached the covenant in the past. Accordingly, this restrictive covenant will operate and be enforceable even if your son gets planning permission for change of use. The restrictive covenant will also be enforceable even though you have already breached it by running a holiday cottage there. In strict point of law, you are liable to the holder of the restrictive covenant in damages for this breach. Accordingly, I would not publicise that you have already breached the restrictive covenant. No precedent is set by your previous unlawful user. The restrictive covenant is applicable even if no traffic problems or disturbance is caused if you breach it. Additionally, it makes no difference to the situation that the restrictive covenant might interfere with your son's right to earn his livelihood, or that a breach would not materially affect neighbouring properties.

Buachaill :

2. You can go to court and seek a Declaration to test if the covenant is enforceable. However, such an action would be doomed to failure and you will have costs awarded against you. Be aware finally, that even if the restrictive covenant was not applicable, you would still need the consent of the Secretary of State to run and operate a business in a National Park, as this is not a permitted user in a National Park area.

Customer:

Buachaill,

Customer:

Your reply is Is there any defence, and if so what would it be since

Buachaill :

3. There is no defence to an action on the restrictive covenant.

Customer:

Even though the covenant only prevents a trade business defined in the leagl dictionary as 'the buying and selling of goods for profit' or a profession which I do need to define to a lawyer both of which do not describe a service businesslike a B & B. Furthermore, the church surveyor who wrote the covenant has agreed that it was not designed to prevent a low impact sevice business like a B and B and would likely give a statement to the sam?

Buachaill :

4. Surveyors do not write restrictive covenants! Lawyers do. So it is not correct to state that a surveyor wrote the restrictive covenant. Ultimately, his opinion is irrelevant. The covenant means what is says it means. Namely that no trade or business can be carried on there. Nor can it be used except as a private dwelling. YOu need to realise that a restrictive covenant is what is says it is. It restricts the use of property. Here you need to speak with the church in whose favour the benefit of the restrictive covenant runs and see if they will vary it in your case. However, as things stand, the legal position is that your son cannot run a business there.

Buachaill, Barrister
Category: Law
Satisfied Customers: 10267
Experience: Barrister 17 years experience
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