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propertylawyer
propertylawyer, Solicitor
Category: Property Law
Satisfied Customers: 232
Experience:  Property solicitor with expertise in commercial and residential property transactions.
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I have been renting a flat for 7 weeks, as part of a six

Customer Question

I have been renting a flat for 7 weeks, as part of a six month contract. I am an osteopath and need to work from home. I explained this to the agent when looking for a flat. The agency helped me find a flat to live in with my daughter in which I could use one room for a clinic. I have done the room up as one, made a few small improvements to the flat at my own cost and have a website advertising the clinic, publicity materials printed and have settled in well. I put my plaque on the front wall. The agent came to visit about a few other things and mentioned my plaque. She asked if any of the neighbours had complained and I said, no. She was happy with everything despite seeing that I had a clinic.Today I received a phone call saying that there had been a complaint about my plaque and that it had to come down. Something to do with the freeholder. I was also asked to take my website down completely until the landlord of my flat had checked with his mortgage company as to whether he could let the flat to someone partly using it for business purposes.I want to be clear that both the agent and the landlord knew I was an osteopath and that I would use a room in the house as a clinic. She reiterated this on the phone today and said the landlord was not against it, it was simply a question of his mortgage.What has happened is that the agent has swept the strictly illegal side of all this under the carpet as I am a small, sole trader, osteopath and everyone realises I do no harm. I was aware that I signed a contract stating I would not use the property for any business reasons but because all the agents in the agency were aware I was intending to have a clinic, I turned a blind eye too. There have been numerous verbal agreements with the agency that I could run my business form home. And visits from the agency with a clinic present.To move now would mean the loss of earnings over the next few months, the need to move again which cost me £2000 (removal company etc) and I am looking for somewhere to buy and this will not be possible for at least 4 months as I haven't found anywhere yet nor have released enough capital yet.I did take my website down and have been told the landlord will get back to the agent within two days as to whether I can stay or not, along with my clinic. The worse, she said, that could happen, was that they would pay me back the remainder of my 6 months rent up front and I would have to leave if I needed a clinic.I can;t see that they would have the legal right to refuse me my home and clinic at this stage, given I have several verbal agreements that I can run a clinic from here.Can you please advise on the legal situation.
Submitted: 2 months ago.
Category: Property Law
Expert:  propertylawyer replied 2 months ago.

Hi

Thanks for your question. I will try to help you.

Expert:  propertylawyer replied 1 month ago.

This is a difficult position to be in. 1. You relied on the agent's representations that you could run the clinic from the property. 2. You have entered into an AST for residential use only.

In contract any misrepresentation can be taken into account however if any verbal 'negotiations' are superceded by a written agreement then it us generally the terms if the written agreement which become binding on the parties.

There are several issues here which the agent should have looked into before stating that you could run a clinic from a residential property :

1. It is a flat and generally business use us prohibited 8n residential leases

2. A clinic falls into use class d1 and that means you need planning permission from the council to operate from the premises. An application takes 8 weeks, at least, but there us no guarantee that you would get planning.

3. Business use is generally prohibited in standard ASTs

4. The use/change of use may require the mortgagee's consent.

Legally you cannot use the flat without planning consent, freeholder's and potentially mortgagee's consent.

The agent, knowing your intended use, should not have granted the AST. Whilst I would not expect a residential letting agent to know about commercial lettings etc I would have thought the agent would have looked into this as it is not a standard letting.

Have you got a written statement that your rent will be refunded? Worst case scenario is that the landlord can hold you to the letting and there is nothing in the AST about your mixed use and possibility of terminating early if you are unable to use part as a clinic.

Hopefully the landlord will be reasonable and release you with a refund.

I would say your potential claim for works carried out by you to the premises is weak.

Any questions or queries?

Customer: replied 1 month ago.
Hi, yes, I have a few questions.1) I have worked from home three times before and have never had planning permission, because I have on all occasions asked the council and always was told it was not necessary unless I were to substantially change the look or structure of the building. I have even out signs and a plaque at the front and was told by the council that this was fine so long as a) the owner of any wall the sign was on gave permission and b) parking in the street was not affected too much. I was the freeholder of the building in all cases but never had any problems.I have nothing in writing from the agent. The flat is rented to me via an agency as the landlord is abroad.Given there were verbal agreements with both the landlord and the agency, I want to stay here and continue to practice and advertise. But I have taken the plaque down. This is also the home of my 9 year old daughter and is near her school.
Thanks
Customer: replied 1 month ago.
Hello, you have not replied, but I have been asked to rate your service.
Expert:  propertylawyer replied 1 month ago.

Apologies.

My response did not reach you.

It is difficult. You will have to establish that the agent's representation should be taken as a contractual provision but that will be difficult if all communication on the issue was verbal.

What has happened in the interim? Have you ceased trading? Any communication from the landlord / agent?

As mentioned above business use in residential premises is generally prohibited in leases and ASTs. Even if you have been allowed before does not mean that it was 'technically' legally permitted.

Customer: replied 1 month ago.
In the interim I have taken my website down, but have seen a couple of patients. I have only just moved in to the area so I was at the beginning of starting a business here - but it is not really a business, we are talking two people a week at the moment which I hope to build up to five or six. One to one sessions, no noise, no traffic. Just a person visiting their osteopath who has a couch in the room. The flat still looks like and feels like a home, inside and outside. I do need to know whether I can stand up for myself on the basis of a verbal agreement - not just with the agent but between the agent and the landlord/owner.
This is urgent now!!Thanks.
Customer: replied 1 month ago.
Hi
I forgot to say, the agent has spoken with the landlord and explained that I am just a little sole trader and that the flat still looks like a home with a child etc, and the agent is trying to help by writing and talking to the owner. The owner has told the agent that she is |"sure it will be fine, they just need confirmation from her mortgage company". The agent has described it as a storm in a teacup. It only happened because a nasty neighbour reported the chrome plaque on the front wall and told the landlord. The landlord then looked onto the web and saw my flash website and thought I was a much bigger business than I really am - which is tiny. The agent panicked because of the terms of the mortgage and said to the agent they didn't think a business would be covered. If their mortgage company says the mortgage loan does not cover for any business, the owner will tell me I can't work from here, even though neither agent nor owner mind.This is the situation - and more than one agent made a verbal agreement to me. I very much doubt the agent would ever try to deny that the verbal agreement was made, especially as the owner and agent both knew I am an osteopath working from home and was letting the flat on that basis.
Customer: replied 1 month ago.
I HAVE AGAIN BEEN ASKED TO RATE YOUR SERVICE AND AGAIN AFTER NOT HAVING RECEIVED AN ANSWER.
Expert:  propertylawyer replied 1 month ago.

I have answered. You will struggle to rely on a verbal statement if the agent ever denies making it. The 'agreement' on your use and occupation is not specified in the tenancy.

Has there been any further development.

Customer: replied 1 month ago.
The owner/landlord has not come back with a yes or no. It has gone quiet.

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