[2024] UKUT 62 (LC)

The prevention of increased nuisance from the occupants of HMOs

The objectors clearly feel very strongly about HMOs, which they perceive as a source of nuisance and of anti-social behaviour. They argued that Mr Patel’s HMOs are a particular source of nuisance, that his management of his HMOs encourages nuisance, and that he fails to prevent nuisance by his tenants. Of all the issues in the case this was perhaps the one about which they felt most strongly; it was certainly the one on which they adduced the most evidence.

Obviously, the alteration covenant does not prevent the use of any property on the estate as an HMO. All the application properties owned by Mr Patel or his company are already HMOs, as is at least one of the objectors’ properties, and that is not a breach of covenant. Accordingly, the substance of this objection is not that the covenant prevents HMOs, but that it protects the objectors from an intensification of the HMO population in the application properties. If the properties cannot be altered then they cannot be adapted for more occupants. Essentially the objectors sought to demonstrate that Mr Patel is a bad landlord whose tenants are particularly troublesome and that the covenant in preventing him from adding to the number of occupiers of the application properties is securing a practical advantage to the objectors.

Most of the objectors’ evidence was from people who do not live at St David’s Square, namely Councillor Golds and Ms. MacLachlan, who live nearby, Mr Ahmed-Ali who lives on the other side of Ferry Street, and Mr Kini who no longer lives in Docklands but still owns 23 Ferry Street. None of them was relied upon by Mr Spender in closing. We were unimpressed with the evidence of these four witnesses, none of which went anywhere near to prove that Mr Patel’s HMOs cause more disturbance than might be expected from students living in a densely populated area.

The only one of the objectors themselves who gave evidence that she had suffered nuisance from the occupants of the application properties was Ms Venediktova – even though 25 other objectors have properties facing the back of the application properties. Ms Venediktova produced some video evidence of the noise from parties in the application properties; she also took exception to parties held, perhaps once a year, in the carport at the rear of number 18 by Mr Onabanjo; Mr Spender submitted that that made him a “bad neighbour”. We reject that suggestion; it is a disproportionate reaction to the sort of occasional disturbance that is inevitable in a densely populated estate. As to the parties at the HMOs, the quality of the recording did not enable us to get a sense of the noise levels. But all the properties on the estate are subject to covenants “not to create a nuisance”, and not to permit anything to be done on the property or the estate that “may be or grow to be a damage, nuisance of annoyance” to anyone there. It is to those covenants that the residents should look in response to anti-social behaviour by any of the residents on the estate.

None of this evidence, from Ms Venediktova nor from the four other witnesses went anywhere near to showing that the covenant sought to be modified confers a practical benefit on the objectors. That is because the modification of the covenant will make no difference to the numbers of people who can live in the Patel properties.

Each of the Patel properties has an HMO licence for 6 occupants. Mr Patel’s evidence was that these houses have been occupied by four, five or six people in recent years. It may well be that all of them have had six occupants at some time. It is not suggested that that is a breach of the alterations covenant or of any other covenant.

The applicants’ application was for a modification of the covenants to enable the creation of an extra bedroom in the loft space. In his witness statement Mr Patel said that he would be happy to enter into a covenant limiting the number of occupants to six. The open offer letter suggested a covenant limiting the number of tenants to five and occupants to six.

But the modification of the covenant, whether or not subject to that condition, will make no change in the number of occupants presently permissible in the Patel properties, each of which has an HMO licence for six occupants.

The objectors established in evidence that the present kitchens do not meet the local authority’s size standards for a house with six occupants; the effect of the extensions would be to make the kitchens compliant with those requirements. We are invited to draw the inference that that is the motivation for the extensions. So it may be, perhaps in the hope that there will be no difficulties when the HMO licences come up for renewal. But that does not alter the fact that the Patel properties at present can be, and have been, each occupied by six people without breach of covenant and without contravention of the terms of the current HMO licences.

As to the rest of the application properties, there are no plans at present to turn them into HMOs. The present or future owners may decide to use them as HMOs, and they are entitled to do so under the covenants in their lease.

We conclude therefore that the covenant does not secure for the objectors the practical benefit of preventing the intensification of the use of the application properties as HMOs; specifically it does not prevent any of them being used for six rather than five occupants.