Council tenants exercising right to buy – Purchasers covenanting not to use properties for any purpose other than as private dwelling-houses – Properties being let for short-term holiday use – Whether use as private dwelling-house – Application for injunction for breach of covenant – Application refused – Appeal allowed
The appellant council sold two properties to the respective tenants under the right-to-buy provisions of the Housing Act 1985 Both purchasers covenanted with the council not to use the properties for any purpose “other than that of a private dwelling house” and that “no… business of any kind shall be permitted to be set up or carried on…”.
The properties were subsequently conveyed to the respondents, subject to the covenant. Both respondents placed “to let” signs in the windows of their respective properties, which were then let for short-term holiday use of one or two weeks at a time. The council sought an injunction against the respondents on the ground that they were in breach of the covenant. The judge dismissed the council’s application, holding that, although the properties were being let for short-term holiday use, they were being used as private dwelling-houses.
The council appealed, contending that the letting of the properties for holiday use did not amount to use as a private dwelling-house. The respondents submitted that they were entitled to let the properties to tenants and that it would be illogical to conclude that the tenants were not using the properties as private dwelling-houses just because they were let for short periods of time.
Held: The appeal was allowed.
The question raised by the letting of the properties for holiday use was of wide interest, because the form of covenant used was well recognised and there was no direct authority on the issue. It was important to look at the context within which the covenant had been imposed, which was that of a sale of the properties by the council. It was a natural inference that the purpose of the covenant was to protect the amenities of the surrounding neighbourhood and to ensure that the properties remained part of the housing stock available for people to live in within the district.
Furthermore, the concept of a “home” was relevant to determine whether or not the properties were being used as private dwelling-houses for the purposes of the covenants. In order for the properties to have been used as private dwelling-houses, a degree of permanence was required, as was an intention that they should be homes, albeit for a relatively short period. On that basis, it could not be concluded that the use of the properties by holidaymakers was use as a private dwelling-house for the purposes of the covenant: C&G Homes Ltd v Secretary of State for Health [1991] 1 EGLR 188 considered.
Roger Kaye QC and Guy Adams (instructed by the solicitor to Caradon District Council) appeared for the appellants; Damian Falkowski (instructed by Stafford Young Jones) appeared for the respondents.
Thomas Elliott, barrister
