Covenants and the classification of a Motorhome as a Caravan: Legal Decision

[swissclive]

Hi,

 

There was an old thread on here several years back regarding restrictive covenants and whether motorhomes would fall under the same restrictions as caravans.

 

The thread is: https://forums.outandaboutlive.co.uk/forums/Motorhomes/Motorhome-Matters/Restrictive-covenants-and-motor-homes/38826/

 

I have an update which people might find useful.

 

I have personally been fighting my own battle with the "directors" of the private estate I live on who assert that a motorhomes is essentially a "motorised caravan" and therefore under my covenant (written in 1923), which states caravans cannot be kept on my land, I cannot keep it. I have taken great exception to this as I keep my shiny motorhome completely hidden, unlived in and with the agreement of all adjacent neighbours - yet the estate find this to be in "breach" and are constantly threatening court action. This is stressful and unnecessary yet they will not engage in any discussion about it.

 

Those "for" the argument will often quote two sources to say they motorhomes and caravans are the same thing:

 

- The DVLA classification of the motorhome as a "motor caravan"

 

- The The Caravan Sites and Control of Development Act 1960 and The Caravans Sites Act 1968. These define a caravan as being: ‘any structure designed or adapted for human habitation that is capable of being moved from one place to another (whether being towed or by being transported on a motor vehicle so designed or adapted)”

 

HOWEVER:

 

I have recently discovered a high court / upper tribunal ruling on this matter, which now stands as case law.

 

Essentially, when the European Union asked the UK to remove VAT from caravans (so as not to penalise those who use them as permanent homes), a motorhome company called Oaktree Motorhomes Ltd took HMRC to court to recover VAT on the basis that motorhomes WERE caravans.

 

They lost.

 

They appealed.

 

They lost again in the higher court.

 

The ruling is long and complex, but the basic gist is that unless there are any special or technical definitions in a law or contract, the common ordinary meaning of the English term "caravan" shall prevail when assessing whether a motorhome is a caravan, and by that measure, they are not the same since a caravan is always reliant on external power to pull it (be it a horse, car or truck) whereas a motorhome is self propelled (Oxford English Dictionary).

 

The full ruling can be found at:

 

https://www.gov.uk/tax-and-chancery-tribunal-decisions/oak-tree-motor-homes-ltd-v-the-commissioners-for-hm-revenue-and-customs-2017-ukut-0027-tcc

 

So, if you do own a motorhome or campervan and your covenant does only say "caravans" and not refer to motorhome, campervan or home on wheels etc (usually this limited definition only happens in very old covenants), then a court looking to uphold the covenant against a motorhome or campervan would need to overturn this high court ruling.

 

This is EXTREMELY unlikely.

 

This is not to say you should store massive motorhomes that block light etc from your neighbours, and normal good code of conduct should apply, but I do feel it necessary to publish this to help those people who are keeping vehicles well hidden but are pursued by unreasonable neighbours or estate committees.

[StuartO]

Wouldn’t you need the precedent of a court decision in the context of a covenant to establish what you are hoping is the case? And couldn’t a court still decide that in the context of a prohibiting covenant such a yours, a motorhome can be regarded as a caravan, since the original intention (in 1923 in your case) can be see as excluding any type of live-in caravan, self propelled or otherwise? I doubt you are out of danger quite yet.

 

Having said that AFAIK anyone who wants to enforce an old covenant has to show that the purpose of it still has relevance. Your argument that your MH is tucked away out of sight and your neighbours don’t mind would appear to have merit. Good luck if you end up being taken to court.

 

We have a covenant which prohibits parking a caravan on the drive or it’s flanks (whatever that means) but there is no mention of prohibition elsewhere on the plot so we created a gated access and hard standing to allow us to park in the side garden. And fortunately the owner of the property which has the benefit of the covenant is an amenable chap who owns a motorhome and parks it on his drive, so I think we’re probably safe.

[747]

Thanks for that information, it's worth remembering.

 

Mine is parked on my driveway with the consent of my neighbours. In the unlikely event of someone trying to enforce a covenant against me I will not fight it ........ on the condition that ALL covenants be invoked. That would mean around 75% of the homes being in breach of various covenants. And that is a conservative estimate. :D

[swissclive]

Each covenant is a separate contract, so has to be taken to court separately. The owner of the covenant has the right to choose any single covenant without setting any precedent over the others.

[swissclive]

"Wouldn’t you need the precedent of a court decision in the context of a covenant to establish what you are hoping is the case? And couldn’t a court still decide that in the context of a prohibiting covenant such a yours, a motorhome can be regarded as a caravan, since the original intention (in 1923 in your case) can be see as excluding any type of live-in caravan, self propelled or otherwise? I doubt you are out of danger quite yet."

 

I don't think so. The ruling of case law doesn't have to be directly relevant to other cases - i.e. case law for something that is not covenant related is still case law. The ruling that the definition of caravan doesn't include motorhome can be used in the legal covenant argument in the same way the HMRC case uses other cases unrelated to tax law.

[dawki]

This is very interesting many thanks for taking the trouble to post this information it may be useful to me in due course

 

[Adiebt]

swissclive - 2021-06-22 5:06 PM

 

"Wouldn’t you need the precedent of a court decision in the context of a covenant to establish what you are hoping is the case? And couldn’t a court still decide that in the context of a prohibiting covenant such a yours, a motorhome can be regarded as a caravan, since the original intention (in 1923 in your case) can be see as excluding any type of live-in caravan, self propelled or otherwise? I doubt you are out of danger quite yet."

 

I don't think so. The ruling of case law doesn't have to be directly relevant to other cases - i.e. case law for something that is not covenant related is still case law. The ruling that the definition of caravan doesn't include motorhome can be used in the legal covenant argument in the same way the HMRC case uses other cases unrelated to tax law.

I’m the Company Secretary of a group of shareholders who form the residents of a barn conversion development , if our covenant stated caravans only as a restriction i would simply ( at AGM with majority consent ) change the wording of the covenant to include motorhome / Van conversions etc , thank you for bringing this to my attention so our covenant can be changed accordingly .

[CurtainRaiser]

Adiebt - 2021-06-22 8:50 PM

 

swissclive - 2021-06-22 5:06 PM

 

"Wouldn’t you need the precedent of a court decision in the context of a covenant to establish what you are hoping is the case? And couldn’t a court still decide that in the context of a prohibiting covenant such a yours, a motorhome can be regarded as a caravan, since the original intention (in 1923 in your case) can be see as excluding any type of live-in caravan, self propelled or otherwise? I doubt you are out of danger quite yet."

 

I don't think so. The ruling of case law doesn't have to be directly relevant to other cases - i.e. case law for something that is not covenant related is still case law. The ruling that the definition of caravan doesn't include motorhome can be used in the legal covenant argument in the same way the HMRC case uses other cases unrelated to tax law.

I’m the Company Secretary of a group of shareholders who form the residents of a barn conversion development , if our covenant stated caravans only as a restriction i would simply ( at AGM with majority consent ) change the wording of the covenant to include motorhome / Van conversions etc , thank you for bringing this to my attention so our covenant can be changed accordingly .

You cannot retrospectively change a covenant on a property deed.

[747]

swissclive - 2021-06-22 5:02 PM

 

Each covenant is a separate contract, so has to be taken to court separately. The owner of the covenant has the right to choose any single covenant without setting any precedent over the others.

What I meant was that if a single covenant was taken against me then I would demand that the other covenants be enforced also and I would take steps to ensure they were.

[Adiebt]

CurtainRaiser - 2021-06-22 10:30 PM

 

You cannot retrospectively change a covenant on a property deed.

Yes you can , we have done it to modernize the deed . We are all share holders in the common parts of the development which the covenant covers , the administration of the covenant passed from the developer to the management company ( us ) when full occupancy was obtained . The covenant is an organic document and rightly so .

[StuartO]

Threads like this, which bring out the barrack room lawyers in those who contest within them, never resolve anything; they generate heat rather than light I fear.

 

I suspect the inevitability of unresolved argument would be no less on this topic if the contributors were genuine lawyers.

[CurtainRaiser]

Adiebt - 2021-06-23 8:33 AM

 

CurtainRaiser - 2021-06-22 10:30 PM

 

You cannot retrospectively change a covenant on a property deed.

Yes you can , we have done it to modernize the deed . We are all share holders in the common parts of the development which the covenant covers , the administration of the covenant passed from the developer to the management company ( us ) when full occupancy was obtained . The covenant is an organic document and rightly so .

In that case we are not talking about the same thing. What I think would apply in your case is that "you" as the company holding the freehold cannot change a restrictive covenant in the individual leaseholders deeds without the leaseholders consent, and if they hold a mortgage on their leasehold property they would need the lenders consent.

[Derek Uzzell]

The O&AL forum thread linked to in the original posting above was 2015-vintage.

 

Covenants come up every now and again on motorhome forums - this MHFun 2018 discussion may be of interest.

 

https://www.motorhomefun.co.uk/forum/threads/wording-of-our-covenant.173917/

[Adiebt]

Derek Uzzell - 2021-06-23 1:31 PM

 

The O&AL forum thread linked to in the original posting above was 2015-vintage.

 

Covenants come up every now and again on motorhome forums - this MHFun 2018 discussion may be of interest.

 

https://www.motorhomefun.co.uk/forum/threads/wording-of-our-covenant.173917/

Many thanks for the link , as a motorhome owner ( MH in storage ) and the covenant barring motorhomes from the development I sought permission ( we work on a simple majority and I barred myself from voting ) to have the motorhome on the development for one night prior to vacation , this permission was granted and documented . We are very lucky that as a cohort of 10 shareholders that by and large we get on very well . The AGM etc takes place in the local pub ( usually ! ) which helps !

[Brian Kirby]

Which well illustrates why it is not really practical to speak of covenants in certain terms. They are individual undertakings between covenantor and covenantee, which restrict and grant freedoms, and impose duties on, the covenanting parties.

 

In the case of housing developments the covenantor is likely to be the owner (or joint owners if joint occupancy) of a single property and the initial covenantee to be the developer, and thereafter whoever the developer decides to transfer his rights and obligations to. That might be a property management company, a resident's society, or if leasehold, whoever holds the head lease in succession.

 

It is also probable that the covenants will extend to bind each covenantor to every other covenantor as well as the covenantee, so that any individual has the right to seek compliance by any neighbour who breaches, as well as by the covenantee if they fail to perform.

 

Covenants can apply on both freehold and leasehold property.

 

Change can therefore be highly complex, requiring the agreement of all parties to matching legal variations of the deeds of all properties, and those of the covenantee, for which, of course, someone has to pay!

 

On older developments it is possible that the covenentee no longer exists, and that no successor was appointed on their demise, where I believe application to the courts may also become necessary. In that context, I think Adiebt's experience of varying covenants may be one of life's great exceptions! :-D

[StuartO]

We live in a close with three other houses and for purposes of loading or cleaning the MH I do bring it onto the drive for a day or a few days occasionally no without formally seeking approval to break our covenant and none of our neighbours have so far expressed concern in any way - I suspect that they know the MH usually live behind gates in our side garden so they realise it’s only temporary. It probably helps that there are so few of us and no one want to make a fuss about nothing much. Our immediate neighbour has a MH in their garden behind a gate too, which also helps. We have one neighbour who is a bit of a NIMBY (eg about Planning things) and tends to object for objecting’s sake to almost anything but even he hasn’t said anything either - probably because he knows he’s not well liked for his attitudes anyway. The fact that there are only four properties probably makes all the difference.

 

Curiously COVID has “bonded” us more than hitherto and we all help each other out in various ways.

[Adiebt]

StuartO - 2021-06-24 1:19 PM

 

We live in a close with three other houses and for purposes of loading or cleaning the MH I do bring it onto the drive for a day or a few days occasionally no without formally seeking approval to break our covenant and none of our neighbours have so far expressed concern in any way - I suspect that they know the MH usually live behind gates in our side garden so they realise it’s only temporary. It probably helps that there are so few of us and no one want to make a fuss about nothing much. Our immediate neighbour has a MH in their garden behind a gate too, which also helps. We have one neighbour who is a bit of a NIMBY (eg about Planning things) and tends to object for objecting’s sake to almost anything but even he hasn’t said anything either - probably because he knows he’s not well liked for his attitudes anyway. The fact that there are only four properties probably makes all the difference.

 

Curiously COVID has “bonded” us more than hitherto and we all help each other out in various ways.

Covenents can also seriously protect , we have a massive gravelled over flow parking area which a local builder thought ( if he bought the house that was for sale) he could use to store his signed works vehicles on and rent out the house . 1. No signed vehicles 2. No letting 3. AGM minutes were provided of another threatened breach of the covenent ( this time a resident ) where we the company were prepared to take legal action ( which it’s ultimate sanction is seizure of the property) , the builder did not pursue his interest .

As you can tell we like where we live and are very proud of what we have .