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April 23, 2014 2:22 pm
I have an idea for a business I can run from home. Are there any property law issues I should consider? Yes, plenty. The first thing to find out is whether there are any legal restrictions on using your home for business purposes.
What sort of restrictions could there be? Where do I start looking? The property may be affected by restrictive covenants that prohibit certain uses, and there could be an outright prohibition on business use. Your neighbours are likely to be the ones with the right to enforce these covenants against you and they might be able to get a court order to stop you running your business from the property. The title to the property (held by the Land Registry) should have details of any restrictions and you should check what you were provided with by your solicitor when you bought the property. Even if there aren’t any restrictions on the title, there is a risk that your use could disturb neighbours and cause a nuisance, for example, by noise caused or increased visitors to the property. From a legal perspective, something has to be more than irritating before it is a nuisance and must actually cause damage or interfere with someone’s enjoyment of their property. If the nuisance was severe enough, your neighbours could take you to court.
I live in a flat but I own the leasehold. Does that mean I can use the flat for whatever I want? The short answer is no, you can’t. Your lease will govern how you can use the property so you will need to check whether it contains any restrictions. There may be an absolute prohibition on business use, or it may say that you need to seek your landlord’s consent. Certain types of leases (including the widely used assured shorthold tenancy or “AST”) prohibit business use. Running a home business in these circumstances would be a breach of your lease and there would be a risk of your landlord trying to terminate your tenancy.
Do I need to tell my mortgage lender? Residential mortgages usually prohibit using the property for a business, so you need to check the terms of your mortgage and if necessary, ask for consent from the lender. Breaching your mortgage could risk the loan being terminated and being repayable immediately.
Am I likely to need planning permission? It depends on whether you are intending to make any alterations to the property. If you are planning on making structural changes or constructing any extra buildings, you are likely to need planning permission.
What if I am not making any alterations? Will running your business materially change the use of the property? The answer is likely to be yes if your property will no longer be used mainly as a private residence or your business will increase traffic, involve activities unusual in a residential area or disturb your neighbours. The key test is whether your house is still mainly a home or whether it has become business premises. If it has, you may have to make a planning application for change of use. If you are in any doubt, you can apply to the local council for a Certificate of Proposed Lawful Use or Development in relation to your proposed activity, to confirm that it is lawful. The Planning Portal has some helpful links.
Will I need to change my buildings and contents insurance? You must consider it. Check the terms of the policy, because if you don’t, there is a risk that your building and contents insurance could be invalidated. If the policy prohibits business use then you will need to ask for consent from the insurance company. Depending on the nature of the business, you may also need to consider employers and/or public liability insurance to deal with employees or third parties, for example, covering the risk of them injuring themselves in the property.
Will my local authority need to know? That will depend on the nature of the business and the number of people that you are planning to employ. For example, businesses related to child care, food production or hotel/B&B businesses are likely to need specific licences. The government website has a “licence finder” tool that you may find helpful. You may also need to comply with relevant health and safety and equality legislation.
Will it affect my council tax? It may. Businesses are liable for business rates rather than council tax. If you work from home, depending on the level of use, the part of the property used for the business may be liable for business rates while the remainder of the property remains liable to council tax. You can get advice from the Valuation Office Agency.
Are there any other useful websites? See the gov.uk page on home business.
Matthew Lucas is a solicitor in the Real Estate team at King & Wood Mallesons SJ Berwin
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