People have long since worked from home, but not to such an extent and not in such numbers. As employers are now seeking to regularise and document the position by imposing revised employment contracts and requesting further information from their staff, questions are being raised about the legality of homeworking from a property perspective.
Firstly, most employees who own a home will have a mortgage, the terms of which may require consent prior to - or, more problematically, disallow – home working.
Another factor to consider is what your home insurance policy says. While it may be lower risk in some respects (I hear burglars are having a really rough time at the moment), it may raise the profile in others; appliances and utilities are being used more intensively and for longer periods for example and accidents can happen. It would be sensible to have a scan through the fine print of your insurance policy terms and conditions.
If you are one of the lucky ones to have already paid off your mortgage, that does not necessarily mean you get away scot-free, however. If you own a flat, and so your tenure is leasehold, there may well be restrictions in the lease itself which prevent you from using the property for anything other than as a residence. The same is true if you are renting.
In addition, there may be restrictive covenants on either the leasehold or freehold title which, for example, say ‘no trade, business or profession shall be carried on upon the Property’ or ‘the Property shall not be used for any purpose other than as a private dwelling unit’. What would the presence of either of these mean in practice? Well, as ever, that depends. It may appear that working from home would be a technical breach – but who is going to enforce it? The beneficiary of the restrictive covenant (i.e. the person who can enforce) may not be known, may not be identifiable, or may not care. Also, the purpose of many of these types of provisions are to prevent nuisance, loud working (like car repairs etc.) or other types of disturbance such as large numbers of customers coming and going. What, in reality, is the difference between someone working from home on a laptop, or someone watching TV all day? That said, it may be abundantly clear who benefits from the restriction, and they may be well aware of its existence, which could present a problem.
Even if it may appear low risk, a homeowner-employee may still not be comfortable with running it and an employer cannot compel an employee to knowingly breach such a covenant. Dealing with a vexed neighbour is not going to be something they signed up to when they took the job originally.
Finally, what is the position from a planning perspective? Will working from home breach planning law? It is probably unlikely: pre-Covid, occasional working from home was an accepted ancillary use and we would be surprised if policy changed in the near future (not least because the Government is still advocating working from home if you can). Even with increased hours spent working from home, the primary use of the property is likely to remain residential and one would hope leniency and common sense would continue to be exercised during these trying and exceptional times.
The same could be said for enforcing restrictive covenants, though this would be at the Court’s discretion and we are not aware of any disputes (yet) making their way into the judicial system. If they did, much would depend on fact and degree: what is the nature and extent of the work, is it causing nuisance (is there something tangible and actionable that is impacting that person) and what is the alternative?
What could be done?
- Risk it…
- Investigate whether the covenant could be discharged or released. Speak to your lawyer before doing anything though… you need to be careful not to prejudice your position.
- Speak to your lender and get permission to work from home or written confirmation that this will not constitute a breach of your mortgage.
- If you are subject to a restrictive covenant, take out insurance… indemnity insurance products are out there which could provide cover at very low cost, though an employee may feel that they should not have to bear the cost. Again, your solicitor may be able to help here and there are likely to be pre-conditions to comply with (including not communicating with the beneficiary).
- Employers could offer alternative spaces (e.g. flexible offices) for employees.
- Employers could make sure that the office is set-up for the return to the office to ensure that workers have the option to come in as and when necessary.
- Employers should think about developing a policy to deal with queries that will inevitably be raised by employees.