Injunction possible for airbnb let in contravention of lease?

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  • Injunction possible for airbnb let in contravention of lease?

    Hi, my neighbour has been letting his flat downstairs to airbnb guests whenever he can't find an AST tenant, or at least his agent has. At the moment, 3 out of the 4 rooms are being let to airbnb tenants in violation of the lease which requires a minimum 6 months AST. An added complication is that with 4 separate rooms let to unrelated tenants I think we are in HMO territory, don't think the agent has registered it as such though, I haven't noticed any health and safety requirements being met (no fire extinguisher in the hallway for example). I'm now at my wits end as again tonight a 'guest' tried to enter my flat with the keys for the downstairs flat and scared the living daylights out of me! This has happened on a number of occasions, I've told the owner who lives in Australia and he gave the agent a final warning earlier this year, for all the good that's done! I'm fed up as it's been 2 years at least this has been going on, I only cottoned on at the beginning of the year, and think my co-freeholder is dragging his heels. I want to pursue another avenue such as an injunction against the agent. Is this the best course of action at this stage? I'm at a loss to be honest with you. Any advice gratefully received. Thanks in advance.

  • #2
    Are you willing to pay the costs, then?

    If not, I would just contact the council regarding HMO breaches.

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    • #3
      I believe it is currently not considered advisable to mix fire extinguishers with people not trained to use them. On the other hand, I assume that holiday letting requires a fire risk assessment, even if HMO rules aren't triggered.

      Is the covenant in question just with the lessor, or also with the other leaseholders (can you act as a leaseholder, or only as freeholder?)?

      How does the co-freeholder fit into the picture? Is this a tenants in common shared freehold (which may mean all joint freeholder must agree before taking action)? Are they the leaseholder of the problem flat?

      For how much of the year is the flat used for holiday lets (might cause the council to treat it as a business, and therefore planning breach)?

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      • #4
        Thanks for your replies. I live in a share of freehold, 2 flats in the building with underlying lease so I would be enforcing the lease as leaseholder I suppose. Yes they are the leaseholder of the problem flat. The flat is used all year round as holiday let now . They've had trouble renting out the rooms on an AST, don't know why they can't rent it out to a family as a single unit. Trying to maximise profit I suspect but we're not allowed to rent out except under an AST by both the insurance and the lease. Each year we have to confirm with the buildings insurer that the flat downstairs is let to professionals, fully vetted etc. on an AST basis. Don't think they've done any kind of safety assessment either..

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        • #5
          Confusing OP
          Do you own/or Lease for both flats or just your own? Have you notified freeholder/Council/your Insurer yet of the situation yet?
          What did they advise?

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          • #6
            Share of the freehold is a marketing term. It can mean either that the leaseholder are tenants in common of the freehold, or that they are are members of a company that owns the freehold.

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            • #7
              I own lease for just my own flat, have notified owner of the flat in question, who is the co-freeholder (with me) and he is dragging his feet. We both own the freehold via a limited company. Essentially we have 2 flat owners with 2 separate leases who also own the freehold via a limited company.

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              • #8
                I think THE FREEHOLDER (which sounds from what you say to be a Limited Company) needs to go for that injunction. So whoever owns the shares in the freehold needs to vote on the matter & proceed: When did the freehold company last hold a meeting? Is ir registered with companies house (& up-to-date with filings?)
                I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

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                • #9
                  I wanted to be sure that I am able to enforce the terms of the lease which restricts the type of tenant allowed in the property. The lease actually requires the flats to be occupied as a single unit, letting out rooms individually is not allowed. I assume there is nothing to prevent me taking action to enforce the terms of the lease, whether as co-freeholder or lessee?

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                  • #10
                    The freehold company is up to date with filings, the shares are held by me and the owner of the problem flat in equal shares, so it may be tricky to ask him to take action against himself? In this situation who enforces the lease? Or is it then an action in the civil courts which could take ages..

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                    • #11
                      Originally posted by Savanna View Post
                      I think we are in HMO territory.
                      you can change to that to being certain (or not) by simply searching the web for "HMO license" and the name of your council which will take you to regulations on number of bedrooms in dwelling that qualifies.

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                      • #12
                        You probably can't enforce the lease as a lessee, but you could as the freeholder.
                        As a lessee, you probably can't enforce the terms of someone else's lease.

                        However, that doesn't sound like a route forward as the other party doesn't sound like they will cooperate.
                        You'd need some specialist legal advice to move forward.

                        If the other leaseholder is using an agent to fill the property, either the agent has rented the property from the other freeholder and is therefore the person doing the renting, or the agent is working for the other freeholder and would have to do as they are told (final warning notwithstanding).
                        If it's the former the other freeholder needs to end the agreement with the agent, or, if the latter, they need to tell the agent to stop doing what they're doing.

                        I suspect that the situation is not as simple as you hope and the other freeholder is actually quite happy with the arrangement.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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                        • #13
                          You can only take action under the lease if the other leaseholder''s lease contains a relevant covenant which is made with other lessees. Without seeing the wording, it is not possible to know that.

                          Even if the covenant is with lessor and lessees, the lessor has the option of initiating forfeiture proceedings, which the lessee doesn't.

                          Who are the directors of the freehold company? What is the quorum for a board meeting, and what is the quorum for a general meeting? My guess is with only two members, you would need both to vote, and you would need the chairman's casting vote, which would be messy, as choosing the meeting chairman would amount to the actual vote. If there were three members, a company would have the advantage of allowing a majority vote.

                          Unless there is a third shareholder, I would suggest that going through the council and insurers is a better option, although, if the insurers void the insurance, the company will still have to agree to take the action needed to rectify that.

                          (If the lease contains a clause allowing lessees to force the lessor to enforce covenants, you could take out an injunction against the company, but that would be messy, if the company refused.)

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                          • #14
                            I agree that it is quite possible that the landlord has given a tenancy to the Agent who then fills the rooms as he sees fit. If that is the case, then unless the tenancy agreement makes clear the lease term about not letting the rooms individually, the Agent as tenant wouldn't be bound by it. The only way for the leaseholder to end the problem would be to negotiate an early termination of the contract with the Agent, which is a cost he may not be willing to bear. I suspect that if this bothers you enough, you will end up having to sue your fellow leaseholder to make him take action.

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