Hairdressing business in a flat

[davidclee]

One of our flat residents has been carrying out a small hairdressing business for over 19 years, where clients come to her flat, and there have been no complaints of any sort - up till now.

A new flat owner has just moved in and is insisting that the Board stop the hairdressing business as it is against the Lease.

The Lease states: "Not to use the flat nor permit the same to be used for any illegal or immoral purpose or for any purpose whatsoever other than as a private residence in the occupation of one family only" - which seems to the Board to be a bit ambiguous anyway.

It seems there is a legal term known as 'Estoppel'. The Board's interpretation of this in this case is that since the hairdresser has been operating this business for some time, and has also been invoiced by the Board and has paid her Ground Rent and Service Charges to date then the hairdressing business is free to continue - as long as it does not constitute a nuisance to others.

Anyone know if that is correct?

Does anyone know of a similar case that has come to court, which can act as a precedent?

(This matter might also affect many other flats - it is quite common to operate a quiet business from home these days...)

Another factor - 19 out of 21 flat owners own the Freehold - including the hairdresser.


(The 'Board' above refers to the non-paid elected directors of the Residents Association, who are themselves flat owners.)

 

[Annoying Donkey]

Probably better to ask on landlordzone forum.

IMHO if there is no nuisance (other than someone being pedantic) caused to other lessees it would be hard to enforce this.

In addition, acceptance of ground rent means the freeholder has accepted the right of the lessee to continue her hairdressing business.

I am pretty sure that there are some LVT decisions on this, so a search of the RICS site or Lease advisory site might come up with something. Also you can get free advice from lease advisory service.

 

[deniser]

Accepting ground rent after knowing about the breach means you can't complain about it afterwards but I'm not sure where that leaves you vis-a-vis the new flat owner who (presumably in his lease but please check) has the right to ask the landlord to enforce the covenants of the other tenants in the building.

Is the new flat owner one of the ones who owns a share in the freehold?

There is a difference between a quiet business involving a person at a desk using the phone and computer and a business like a hairdresser which involves people going in and out of the building all the time.

 

[Annoying Donkey]

Accepting ground rent after knowing about the breach means you can't complain about it afterwards but I'm not sure where that leaves you vis-a-vis the new flat owner who (presumably in his lease but please check) has the right to ask the landlord to enforce the covenants of the other tenants in the building.

I won't disagree...

There is a difference between a quiet business involving a person at a desk using the phone and computer and a business like a hairdresser which involves people going in and out of the building all the time.

Which is why I said:

IMHO if there is no nuisance (other than someone being pedantic) caused to other lessees it would be hard to enforce this.

I was subject to a complaint from our management as part of their bullying and the response was 'what nuisance was I causing to other lessees' and I heard nothing more on the subject. IMHO there has to be some just cause, other than the simple fact of running a business, to enforce such a covenant and I believe if you check out LVT decisions you will find they have the same view.

 

[davidclee]

Dear Deniser & Weblink

Thanks for your replies - apologies for my somewhat belated reply - I have only just received an email that notified me of your replies.

I have just posted the question on the Leasehold Advisory website to see what reply comes back.

We have managed to have a chat to at least two solicitors by phone (for free) about this and their view is that since the Lease is a contract, a flat owner should not be carrying out a business in their flat.

The complainant has now produced a solicitor's letter and has the financial resources to go to court. Solicitors have also remarked to us that the deeper the pocket, the more chance of winning a case like this....

The Lease states: "Not to use the flat nor permit the same to be used for any illegal or immoral purpose or for any purpose whatsoever other than as a private residence in the occupation of one family only".

This also seems to imply that the Board members (the flats are managed 100% at the moment by four directors who are flat owners and residents) should not be meeting in each others flats to hold Board meetings - although it is hard to see anyone complaining about that, unless perhaps we make too much noise.

Regards,
David

 

[fisicx]

Not offering much help I'm afraid but a couple of questions come to mind.

Is the property registered as a business address and is she paying business tax?

Does she have insurance (public liability and personal)?

In other words, is this a legitiamate business or just something she does to earn a few bob?

 

[davidclee]

Hi fisicx

Thanks for your comment.

Yep - this business is all kosher regarding rates and taxes etc and the income is used to pay a mortgage and living expenses....

Regards,
David

 

[imaggroup]

The Lease states: "Not to use the flat nor permit the same to be used for any illegal or immoral purpose or for any purpose whatsoever other than as a private residence in the occupation of one family only" - which seems to the Board to be a bit ambiguous anyway.

I don't see whats ambiguous about that? It's a residential flat for residential use... ok if no one complains then she carries on as she is but that doesn't mean she's legally entitled to do it, it just means that no one is enforcing the contract she has signed up to.

I wouldn't waste any time or money trying to get a solicitor to defend an undefendable position, she'd be better off trying to charm the claimant into dropping the claim

 

[davidclee]

Dear imaggroup

Thanks for your reply.

The claimant is somewhat uncharmable, to say the least....

Anyway, all seems to have ended well. Many friends have come together to produce a detailed reply to the claimant's solicitor, stating a number of things, including that the hairdresser will not be doing hair for money at her flat. She will doubtless carry on cutiing and setting hair for friends and family for free however, just to keep her hand in, in her spare time. That's her story anyway....which has now been accepted by the claimant's solicitor.

As you say, it was certainly not worhwhile getting a solicitor to defend the undefensible - so she didn't!!!!

We'll have to see if the matter rests there....

 

[davidclee]

Dear Rhino2020

Thanks for your email - You say "Talk to the landlord" - but there are no landlords. Everyone owns their own flat in this situation. I am one of the flatowners on the Board of four directors, and we manage the properties ourselves.

We now have a new development, in that the hairdresser has stated to the claimant's solicitor that she will abide by the Lease, ie she will not cut or do hair for money at her flat. Being a very sociable person, our hairdresser does have lots of friends and family coming to the flat. The claimant has now taken it on himself to question her friends and family, as they come into the block, or on the stairs, whether or not they are clients.....

At some point, this might become a case for harassment against the claimant - let's call him Mr X. There is no noise issue, as far as we can tell - in fact, the hairdresser - let's call her Ms H - has asked friends and family to text her as they come in and Ms H meets them a the front door, thus eliminating the buzzer sound to gain access to the Block.

Mr X has taken it on himself to seemingly spend his life catching her out.

This saga will obviously run on for some time yet....

 

[Annoying Donkey]

I think I'd be looking at seeking an injunction against Mr X for harassment and breach of the Lease. He has no business interrogating anyone's visitors. The essence of a lease is peaceful occupation, which includes freedom from this sort of harassment.

If the business is not causing a nuisance to other lessees, then it would be very difficult, if not impossible, to enforce the clause.

 

[davidclee]

Thanks for your reply WeblinkPlus. I think you are right - if Mr X's behaviour continues in this way, then the Lease will then possibly work against him.

We will wait a few weeks to see what happens.

 

[FitnessSolutions]

Firstly, the person who is complaining about the business is a complete idiot and "busy bee"

Maybe you keep a close eye on him and evict him for breach of anything?

If you are on the board, then it is your decision as a board when and if you want implement your regulations.

Alternatively, you could amend the lease terms or the business residents lease specifically?

Or maybe even a commercial lease for them only?

 

[davidclee]

Dear FitnessSolutions

Thank you for your post.

Suprisingly, any Board in this circumstance cannot just make up rules and implement them, even if all flat owners vote and agree. If it is not in the Lease, then basically something cannot easily be legally implemented.

The Lease can of course, be changed - however, in our case, there are 21 leases and each one would have to be changed. This can cost £100 to £400 - so there has to be a very good reason for changing a Lease.

 

[FitnessSolutions]

I am in no way shape or form suggesting you make the rules up as you go along. But you as a board can decide when to act forcefully or softly against an issue.

Many times I have complained about certain things but they have fallen on "deaf ears" if you know what I mean.

If the resident wants to become formal with you about it, they may decide to write a letter. If they do, you could just reply stating that you have acknowledged their concern and that you will deal with the issue in due course.

They are unlikely to take court action, but if they do they would have to provide overwhelming evidence such as a commercial sign saying " Hannah's Hairdressers" or something similar. It probably will not even get into court.

I really would not worry.

 

[davidclee]

Dear FitnessSolutions

Thanks for your post.

This is about a complaining resident who has already produced a solicitor's letter about the situation. A reply was sent to the solicitor and, hopefully, that should be the end of the matter.

The hairdresser concerned had been happily plying her trade from her flat for over 20 years and her clients included other neighbouring flat owners. The complainant seemingly has deep pockets and the law being what it is, chances could not be taken going to court as technically, the Lease states that a flat should not be used as a place of business.

The situation now is that the hairdresser no longer officially carries out a hairdressing business from her flat and it is now with the complainant to prove otherwise.

These things are sent to tease all of us......but if you ask me where I got my haircut, I shall just grin....