Many tenants engage in home exchanges or generously open their door to so-called ‘couch surfers’ without any money changing hands. However, a judge’s ruling served as an important reminder that such activities may be outlawed by terms which commonly appear in ordinary residential leases.
The leaseholder of a flat offered accommodation, via a website, to couch surfers for no financial reward. He also occasionally exchanged homes with others so that he could have a weekend away. His landlord launched proceedings, seeking judicial declarations that, by doing so, he had breached various covenants in his lease.
In denying any such breach, the tenant asserted, amongst other things, that finding guests online was no different from asking friends or family to stay. His online profile emphasised that his flat was not a hotel. The flat had been his only home for many years and offering accommodation to couch surfers did not in any way entail him parting with his own possession or occupation of the property.
Ruling on the matter, the judge found that the tenant’s activities did not breach a covenant in the lease which forbade the flat’s use for any purpose other than as, or incidental to, a private residential dwelling in the occupation of one household only. The judge could see no relevant difference between a couch surfer occupying the flat with the tenant and the latter inviting someone whom he met on a first date, via a dating website, to come and share the property with him.
The tenant’s gratuitous offering of accommodation to others did not amount to a trade. He was also not in breach of a covenant which banned activities that might cause damage to, or be or become a nuisance, annoyance, disturbance or inconvenience to, the landlord, the management company or other tenants. The presence of couch surfers on the premises was no more likely to cause such difficulties than that of any other transient visitor to the property.
However, the judge found that the home-exchange aspect of the tenant’s activities breached a covenant which prevented him from underletting or otherwise parting with possession of the whole of the property, or granting a licence to that effect, without the landlord’s consent. Although such consent could not be unreasonably withheld, allowing home exchangers to stay in the flat in his absence did amount to parting with the whole of the property by way of the grant of a licence.
Both home exchange and couch surfing, the judge noted, also gave rise to potential difficulties in terms of the overall development’s insurance, which excluded cover for damage to any flat used for Airbnb, couch surfing or any other similar short-term sublet agreement. There was, in that respect, a breach of a covenant that forbade activities which, in the reasonable opinion of the landlord or the management company, might prejudicially affect or depreciate the development.