Breech of covenant (business)

[Willy387]

The issue:
A neighbour on a shared drive is operating a childcare business from their property. A covenant exists and states 'no business use' to which they have both signed. It operates before school, after and during holidays. The number of children after school and during holidays are above Ofsted recommendations for one childminder, however, it may be that another family member could be employed as their assistant hence an increase in children presumably could be permitted.
Various problems have developed as im sure you can imagine. I could list many, however to list them all would possibly reveal my identity to them. The main problems are the number of children, noise generated and the likelihood that my property has become an undesirable place to live in. It's most certainly become undesirable for us.
Im presuming the only way to close this business is via the covenant. I have been investigating this area on the internet and I've been led to believe that a good conveyancing solicitor can find errors in the title deeds making it invalid. I also believe that they could have purchased covenant insurance which could cause myself financial issues fighting against such a large purse.
I hope the above is a topic that is of interest to someone with the forum and appreciate any assistance you may be able to provide.
I do understand that good childcare facilities are a lifeline within a community, but be assured that this business has been expanded with little to no concern to myself. At the least, know that any help would greatly reduce the stress and anxiety of what has become my nightmare.
Thank you.

[atticus]

Do you have the benefit of the covenant, i.e. is it one that you are able to enforce?

[islandgirl]

Check if they are formally registered as a childminder. Contact the council and ask if they are registered as a business premises.

[atticus]

And Ofsted

[Willy387]

Thank you very much for your replies. Im thankful. In response to your questions i will answer them in the order i recieved them as I'm unable to respond directly to each one individually.

I do have my own covenant and have seen theirs. Both deeds prevent business use. Is the covenant enforceable? Of this i am unsure. Enforcement of the covenant would certainly solve my issue and it's something i would be happy to pursue. How would you advise i proceed?

Registration is not directly with Ofsted, as they do not appear on Ofsted's register. I can only presume they are registered with an agency. How would i check that they are registered as a childminder? You mentioned about being registered as a business premisis. Is this required for childminders and if so, couldn't they apply and still continue childminding?

Regarding Ofsted, i have put in a large complaint a while ago. I need to find out what the outcome was and will need to contact them. I'm of the opinion that they will issue suspensions for breeches, but will not force closure unless there is serious risk to health. There was a pause in the business directly after the complaint, however the numbers of children have been gradually increasing. I'm guessing registration with an agency must be in place, otherwise I would presume they would have enforced closure.

Please accept my apologies if I'm asking questions to which the answer may seem obvious. Im unaware of what requirements that need to be met to run such an operation. I have a general idea, however, you would think the covenant would have prevented this from the beginning. They are aware of the covenant restrictions and are not concerned.

[atticus]

It will be necessary to consider the full and exact wording of the covenant, and not simply your précis of it.

As you have discovered, covenants can be broken, as can other legal obligations. Enforcing rights often comes at some expense.

NB breeches are trousers. The word you are looking for is breach.

[islandgirl]

The person needs a council licence to operate from the house. She must pay business rates. They will be interested in whether she has Ofsted offical registration or not. Get your councillor involved pronto. Ofsted will also be interested if she is allowed to operate from there. Do they know about the covenant?

[Willy387]

Thanks again for your comments.
The covenant is restrictive and the wording is as follows:- To use the premises hereby transferred as a private dwellinghouse and not to carry on any business or trade thereon.
The business has been running for more than a year so it is highly likely that covenant insurance is in place.

I have spoken to the council before. They were considering investigating, but only if i was willing to declare the property being used for business use. At the time i was reluctant to proceed in fear of reprisals and the possibility that what i would refer to as a business, might be exempt for this childminder, as i believe most childminder businesses are unique and can operate from domestic properties with no change of use required and not normally subject to business rates.
During the time the my complaint was registered I did mention to Ofsted about the covenant and told them "how could Ofsted or an agency issue a licence with a restrictive covenant in place". As mentioned previously, I will have to chase Ofsted's report to find out what their conclusions were.
I hope this answers some of your questions and I'm greatful for your help with this matter. Thanks again.

[atticus]

The question is who has the benefit of that covenant. You have not given sufficient information to answer that question.

Do you have legal expenses insurance?

If your neighbour has some form of indemnity insurance, that might equally provide funding to settle any claim for damages for breach of covenant.

[Willy387]

Apologies for my ignorance. Could you please explain what you mean with reference to who benefits from the covenant?

[atticus]

The question is who has the benefit of the covenant. This can only be ascertained by seeing the full terms: to whom was the covenant given, in what terms, and in what circumstances. Someone needs to consider the title as a whole.

You have only given us the wording of the promise not to operate a business. We have not been told the rest.

You have also made quite an assumption about insurance.