Leases and Private Residences

We are seeing more and more cases where a tenant of a long residential leases lets out his or her property on short term lets.  

In Nemcova v Fairfield Rents Limited [2016] UKUT 303 (LC), Ms Nemcova gave evidence that she only let the property out for 90 days a year.  She and her partner had set up a web site advertising their flats as alternatives to hotels.

The landlord argued that she was in breach of the following covenant in her lease: 

Not to use the Demised Premises or permit them to be used for any illegal or immoral purpose or for any purpose whatsoever other than as a private residence.

Her counsel argued that though it was let out, the property was still a private residence. It was private because it had its own kitchen and bathroom.

But that argument was not surprisingly rejected by the Upper Tribunal which held that in order for a property to be used as the occupier's private residence, there has to be a degree of permanence which goes beyond occupation for a weekend or a few nights in the week. It may be private during such an occupation but the occupier would not consider the property as being his or her private residence. The tenant was therefore in breach of covenant

Comment  

As the Upper Tribunal observed, cases such as these turn on the precise wording of the lease and the factual context within which the lease has to be interpreted. Which is to say that care must be taken in drawing conclusions from this case.