Missing leaseholder neglecting property - case for s146 action or abandonment?

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    Missing leaseholder neglecting property - case for s146 action or abandonment?

    I have a complicated potential s.146 case on a long lease. The leaseholder hasn't been seen at the property, a ground floor flat, for approx. 5 years, ground rent hasn't been paid for 4 years and from what I saw through the letterbox the other day, the property is in a state, ie. mail piled up untouched, clutter in front of the door, damp, and also in the garden weeds covering the back wall and the fence and window frames are in poor condition.

    There is indication that the LH has moved, as her last correspondence in 2015 was a cheque sent with a bank address from that town. She did not however provide the Land Registry or the FH with the new address. I have tried locating her and contacted multiple people with her name by phone but with none admitting to being the Leaseholder.

    Is a Landlord still obliged to find the LH to provide notification of a breach of covenant in this instance? How can a FH go about obtaining the LH contact details in this scenario? Could a solicitor obtain the details from a bank? Is this a case of abandonment? Should I in the first instance apply for an injunction rather than a s168 order? For a s168 order can I use failure to maintain the property if I can't enter it? Or is denial of access the breach to use in this instance, alongside failure to pay ground rent for over 4 years, which I understand would need a separate court order.

    I'd be very grateful for any advice! I am currently seeking legal advice but at the moment I'm not even sure of the exact nature of the advice I am seeking!


    #2
    What does the lease say about notices. I'd assume it explicitly, or by default, invokes section 196 of the Law of Property Act 1925, which allows you to attach a notice to the property, addressed to "the leaseholder".

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      #3
      The lease says 'with servants and others at all reasonable times on notice (except in the case of emergency) to enter into and upon the upper flat for the purpose of reparing maintaining renewing altering rebuilding or cleaning (…) or any part of the Lower flat giving support to the upper flat staircases and such sewers drains and water courses cables pipes and wires as aforesaid'

      Also later 'To permit the Landlord and his Agents with or without workmen and others twice a year at reasonable times upon reasonable prior notice to enter upon and examine the condition of the lower flat and thereupon the Landord may serve upon the Tenant notice in writing specifying any repairs necessary to be done by the Tenant'

      These are the only parts in the lease I can see concerning notice. But if the leaseholder doesn't return to the property in the next months and doesn't see the notice would this still be considered a valid notice?




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        #4
        Have you checked with local council to find out who is paying for the annual council tax ? The leaseholder may have had a serious accident and been in hospital for a very long time.

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          #5
          I would use a tracing agent to locate the leaseholder.

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            #6
            Many thanks for everyone's responses! I've been told that only a lawyer can request council tax details is that true? I imagine that will need to be the first step for a solicitor. Yes it is possible that the lady is ill, she was in hospital around 10 years ago. Okay I will look into tracing agents, I wasn't even sure of the term used for these kind of investigtors!

            I've been trying to ask if she would be interested in selling the leasehold, but if she can't be located by anyone then forfeiture may be the only route. If we do find her and she doesn't want to sell then I at least need access to the property for maintenance. However I'm not sure if this is the right time to be asking about acquiring the leasehold if maintenance is the priority? Having said that mutually agreed early termination of the lease in the form of a sale may be a positive option for her if she's struggling, though we'd have to ask for a reduction in price if there's serious repairs needed.

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              #7
              As my lease does include a reference to s196, I've never investigated whether it applies by default in this case, but normally you can serve legal documents to the last known address.

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                #8
                I would ignore the possibility of forfeiture, it is extremely rare, I would concentrate on locating her and she may well wish to sell her interest,

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                  #9
                  I agree about focusing on finding her, but what if there is serious damage to the property that needs to be seen to as soon as possible? I cannot find out unless I enter

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                    #10
                    Is there a court order I can apply for to be allowed to enter?

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                      #11
                      If there is a chance that she is in hospital and if you have no evidence of any damage which requires immediate attention, I would concentrate on locating her. A tracing agent should not take long.

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                        #12
                        Although actual forfeiture is rare, the way you force a sale is to apply for forfeiture. The tribunal will likely then escalate through an order to repair to an order to sell. The final escalation would then be to actual forfeiture.

                        Most leases give the freeholder a right to enter, on notice., or in an emergency. The notice is normally rather longer than the 24 hours for a AST, but the same principles would apply.

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                          #13
                          A Tribunal will not normally grant forfeiture when the leaseholder has not received notice, forfeiture is extremely rare and is very much a last resort. I recommend that you concentrate on locating the leaseholder.

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                            #14
                            Ah I see, so applying for forfeiture is a means of obtaining an order for repair, if she doesn't respond to any written communication yes? Does the order happen by default if the application for forfeiture is made in respect to a breach of repair covenant? And then does the order to sell happen by default if funding the repair isn't possible by the tenant?
                            Is it completely legal to use a tracing agent to find the leaseholder in these circumstances? Many thanks again!

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                              #15
                              You have a duty to try to trace the leaseholder. A Tribunal is unlikely to make any oder in her absence.

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