L's lessee sublet without consent; can L end head lease?

[Crawford]

Hi All,

I'm in a very sticky situation and hoping you kind souls can help me out!

I have one property - a shop. The person I leased it to has now sublet it to someone else. I had my suspicions but the leaseholder pretended he was still running the shop but had put a new manager in. Now the guy the property has been sub let to in breach of the lease is telling me to get rid of the leaseholder and lease directly to him.

So I now have proof that the shop has been sublet but I need to know how to get rid of not only the leaseholder but the guy he has sublet to also. I want the shop back so I can run my own business from there – it is all I have!

I’m very confused – and would really appreciate some help

[jeffrey]

You have no contractual rights against subT. You cannot end his rights: only those of headT. Is his head-lease's fixed term still running?

[Always Problems]

Surely the lease is the most important thing. When does the lease expire. You (through this forum or perhaps a Solicitor) should find out that as your original tenent is in breach of your tenancy agreement as he has allowed someone else to take occupancy of your shop without your permission, that you can serve the tenent with notice that at the end of the tenancy you will not be re-newing the tenancy and that you want it back again for your own use.
And send a copy to the "informal" subtenant. This sub-tenent is trying to improve his situation by asking for a lease in his own name. (which you cant blame him for). However once he finds out that he wont get one and you have the required circumstances to re-occupy the premises at the end of the lease, he may perhaps hand the keys back to your original tenent and leave.
Or offer him a couple of grand to leave, take the keys off him, re-occupy the premises yourself, change the locks and tell your original tenent you have foreclosed. (this argument is probably legally inappropriate) but once you are in, isn't possession 99% of the law.

[Crawford]

You have no contractual rights against subT. You cannot end his rights: only those of headT. Is his head-lease's fixed term still running?

Yes there is still four years remaining on the lease. The subtenant is refusing to pay rent until I sign a new lease with him! If I have to bear a further four years then thats fine - but I am not willing to create a new lease. Surely I can kick the subT out for non payment fo rent?

Thanks for all the advice!

[jeffrey]

You cannot 'sign a new lease' with subT; you don't have even an existing lease with him.

[Crawford]

But his Solicitors have sent me a new lease? Asking me to sign it. Letters were sent out to the original lease holder that he has breached his lease and the lease is now forfeited. and now the solicitors are saying I need to sign a new lease with the subT?

[jeffrey]

OK- if (but only if) the Head Lease is forfeit, the underlease was destroyed on forfeiture. Maybe subT is effectively claiming relief against forfeiture by the mechanism of a new lease direct from you to him. We cannot tell; your own solicitor perhaps can.

[kikuyu]

But his Solicitors have sent me a new lease? Asking me to sign it. Letters were sent out to the original lease holder that he has breached his lease and the lease is now forfeited. and now the solicitors are saying I need to sign a new lease with the subT?

Are you accepting the rent from the sub-tenant at the moment?
Do not do this as you will inadvertantly create a tenancy with the sub-tenant and also he may then claim protection under the Landlord and Tenant Act 1954.

[Always Problems]

But his Solicitors have sent me a new lease??

We all make mistakes. In this case the "Proposed new tenant" has made one and his solicitor is trying to put him on a proper legal footing by trying to rectify his clients situation by sending you a lease for you to sign.
He is refusing to pay the rent. Good, as you dont want to accept it from him.
As Jeffrey points out your contract is with the original tenant.
Is there any rent outstanding at the moment as contractually it is still owed by your original tenent and you could send in certified bailiff immediatly.
And with your tenant not being in occupation can it be said that he has "abandoned" the premises, after all the "Proposed new tenant" should not be there.
Or is it a case where your tenant has "sold" the business (ie cash has changed hands) hands the keys to the "gullible" "proposed new tenant"
I would be inclined to do one of two things, especially as you want to re-occupy the shop again anyway, either get your solicitor to advise how to get him out and in the meantime your solicitor writes to him saying that under no circumstances will you consider granting this person a new lease as if he read the existing lease he would know that he should not be there in the first place and this disregard for the conditions of the lease makes him unsuitable as a future tenant, as it is contrary to the terms of the lease. Or (with your solicitor's approval) go one evening before the shop closes accompanied with a bailiff and ask for the keys and refuse to leave. This will concentrate their mind.
Unfortunately with one of my properties I have a similar problem where my tenant asked for the lease to be assigned to Mr X, he then let Mr X occupy the building (without my knowledge or permission) whilst the lease details were being discussed in minute detail by the 3 solicitors concerned, I was only agreeing to the assignment as the original tenant was signing a rent guarantee should the assignee not pay. Then my original tenant gets a sudden illness and dies, thus leaving the assignee in the premises without a proper lease, without any rent guarantee. And this was after I started using the name "Always Problems"

[Crawford]

Hi alwaysproblems - Im sorry to hear about all your problems.

In answer to your queries, the rent is taken quarterly and the subtenant is one month late in paying that rent.

I believe my tenant sold the business to the subT. SubT is refusing to pay rent until I sign a new lease and I have no desire to give him a new lease as he is a rude and difficult man!

Another problem I think I may have is that there is a flat upstairs? The SubT doesnt rent the flat another lovely couple do. But will the residential element make my forfeiture impossible?