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How do you get around a restrictive covenant that prohibits a single
dwelling from being converted into multiple residential units? The
traditional answer, of course, is that you apply to the Lands Tribunal
under s84 LPA 1925. But, relatively few practitioners know that there
can be an easier alternative – an application to the county court.
Section 610 HA 1985 gives the county court jurisdiction. It is a provision
that is not well known, but is of great potential use. In essence, s610
allows the county court to give permission (despite the existence of a
restrictive covenant, or lease provision) if:
- because of changes in the character of the neighbourhood, the premises
cannot readily be let as a single dwelling house, but could be readily let
for occupation if converted into two or more dwelling houses; or
- planning permission has been granted for conversion into two or more
separate dwelling houses (instead of a single dwelling house).
This is potentially very wide ranging. It can, of course, be extremely helpful
to flat converters. The logic behind the legislation is the government’s
desire to increase the number of living units (ie allow more intensive use
of existing premises). In addition, note that the court has a much wider
discretion under s610 than it does under s84 LPA 1925. In essence, the
court will have to carry out a balancing exercise between the competing
interests, but that could include taking into account matters of public
interest (eg the need for more intensive use of existing dwellings).
For some reason, the existence of s610 remains little known. That is
now likely to change, given that the CA has recently confirmed the scope
of the court’s discretion under s610. Thus, it recently upheld the
conversion of a pair of London semis (each to be converted into two
flats), with the court giving substantial weight to the public benefit of
allowing such conversions (ie the urgent demand for housing in London).
Given the publicity this decision will generate, it is likely that many more
practitioners will now become aware of s610. Accordingly, when faced
with a ‘single dwelling house’ covenant do not think solely in terms of
s84 and the Lands Tribunal; instead, consider s610 under county court.
At the same time, if you act for a client who wants to oppose a proposed
conversion, do appreciate the significance of challenging the planning
application (because if planning permission is granted, there will clearly
be grounds for an application to the court under s610). See Lawntown v
Camenzuli [2007] EWCA Civ 949.
Source: the excellent www.practicallaw.com (subscription service). © Practical Lawyer
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