Permission to Let question

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    Permission to Let question

    Looking for some expert advice please. I am a long leaseholder, I have a tenant on an AST. The lease contains the following clause:

    "Not to transfer assign or underlet the Property as a whole:
    -without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed"

    I requested and received permission several years ago. 1st question - is this permission still valid, as LL now claiming I am renting without permission.

    The next clause says:
    "Within one (1) month after the date of every transfer death grant of probate or administration assent transfer mortgage charge sublease or other event or document relating to the Property to give notice thereof in writing to the Landlord and in the case of a document produce a copy of it to the Landlord or their managing agents or solicitors for registration and to pay a fee of Fifty Pounds (£50.00) (or such higher sum as may from time to time be reasonably stipulated by the Landlord) plus Value Added Tax at the appropriate rate for each such registration of a document"

    I believe this is saying I should send them £50 and a copy of the AST. Is this correct?

    Thanks in advance.



    #2
    Normally for leaseholders, you need to obtain consent from the freeholder that you can rent out your property, this usually isn't denied and you need to pay the fee according to the leasehold, as well as inform the T of any conditions that they need to abide by, for example vacuuming after a certain hour, playing music, hanging washing out of any balcony etc.

    If you didn't exercise the permission years ago, then it may be still valid, the only way I believe it would become invalid is if you changed T's as I think you need to notify the Freeholder/ Managing agent of any changes.

    The second clause not sure what document they require, but you do need to pay £50+vat, you should also inform your mortgage company that you are now using the property as a buy-to let, which they most likely will charge you and also put you on a higher interest rate.

    Comment


      #3
      The first question is did you receive permission in writing? It sounds as though you did as you wrote '...received permission...'. If this is the case it will still be valid.

      The second question is, has the original AST expired since you started letting the property? I will assume it has as AST's are usually (though not always) for 6 months. In this event, and assuming a fixed term AST, each time a new AST is entered into you are required to comply with the clause you referred to as 'the next clause'. You should send the landlord written notice of the AST, a copy of the AST and pay a fee of £50 + VAT (if the recipient is VAT registered). Please note even where the tenant remains the same you need to comply with the clause.

      I would write to the landlord enclosing a copy of the permission letter; enclose a copy of the current AST and a cheque for £50 (+ VAT, if applicable) and write on the back of the cheque what the payment is for and specify it may not be used for any other purpose. If you are lucky the landlord will accept this and not require you to backdate information and payments.

      In the future you could allow the AST to roll over to a periodic tenancy. You will then need to inform the landlord of this and pay £50 + VAT. However if the same tenant remains you will not need to repeat the process until either a new tenant takes on the premises OR you create a new agreement with the existing tenant.

      BTW, as ash72 indicated it is important you ensure the AST (or other agreement) includes terms compatible with the lease. You could attach a copy of the lease and refer to it in the terms. This is because if your tenant breaches your lease and the breach is not a breach in their agreement, you will have no recourse against your tenant BUT your landlord's recourse is always against you as the leaseholder.

      Comment


        #4
        Thanks for the replies. I will send them the £50. They are threatening tribunal determination unless I admit breach. I'm assuming there's no benefit to me in admitting a breach so I'll take my chances. What's the worst that can happen?

        Comment


          #5
          The advantage of admitting is that they cannot charge you as much in legal costs if they win.

          The worst that can theoretically happen is that your lease is forfeited. The worst that is vaguely possible is that you are ordered to terminate the sub-let a soon as you can legally do so. The worst that is likely to happen is that you get hit for a large amount in legal costs.

          Comment


            #6
            Originally posted by leaseholder64 View Post
            The advantage of admitting is that they cannot charge you as much in legal costs if they win.

            The worst that can theoretically happen is that your lease is forfeited. The worst that is vaguely possible is that you are ordered to terminate the sub-let a soon as you can legally do so. The worst that is likely to happen is that you get hit for a large amount in legal costs.
            The bit I don't understand is why they would want to go to Tribunal if any breach is already resolved. If I understand correctly Tribunal will not award them costs - so what would they do next if they win - and what would be the point?

            Comment


              #7
              If it is already resolved, you must have admitted it.

              Comment


                #8
                Originally posted by leaseholder64 View Post
                If it is already resolved, you must have admitted it.
                By resolved - I meant no outstanding issues but without admission. I am trying to understand how LL would benefit from getting a determination - what do they hope to gain?

                Comment


                  #9
                  Please confirm:

                  1 What the consent to let says.
                  2 That you have been letting to the same person since obtaining the consent.
                  3 If you have "renewed" the letting by entering into a new agreement.
                  4 If 3 is not the case if you granted a fixed term which was followed by a statutory tenancy.

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    Please confirm:

                    1 What the consent to let says.
                    2 That you have been letting to the same person since obtaining the consent.
                    3 If you have "renewed" the letting by entering into a new agreement.
                    4 If 3 is not the case if you granted a fixed term which was followed by a statutory tenancy.
                    Thanks lawcruncher. I think I'm OK on my obligations and errors in what's happened so far. What I'm concerned about is that if, after patching things up to make everything compliant now, they may still pursue determination/forfeit action for historical breaches. I'm trying to understand why they might do this - in other words what would they hope to gain? Getting costs is hardly any benefit as they've hardly incurred any yet. Am I exposed to a potentially large penalty payment if they can win a determination for an old breach (in order to avoid S146)? Appreciate your help.

                    Comment


                      #11
                      It is difficult to say what they can do if I do not know the history.

                      Comment


                        #12
                        It would certainly help if you supplied all the relevant facts.

                        If you pay £50, you would be seen to be admitting to a breach of the lease, unless the tenancy agreement is dated within the last month.

                        £50 is unlikely to be the correct current fee, it was considered to be a reasonable sum at the time the lease was drawn up, it will have increased since then due to inflation and VAT may be payable if the landlord is VAT registered.

                        It would then depend on whether or not the landlord considers that you have been in breach of the lease in the past.




                        Comment


                          #13
                          Thanks Lawcruncher and Eagle2 and I appreciate your comments. I'm just trying to avoid bogged down in the specifics and wasting too much of your time - my question is a more general one. What can a LL hope to gain from successful determination of a historical breach (other than costs) - if a breach no longer exists and assuming that relief from forfeit will be granted.

                          Comment


                            #14
                            Originally posted by COLCLARE2 View Post
                            What can a LL hope to gain from successful determination of a historical breach (other than costs) - if a breach no longer exists and assuming that relief from forfeit will be granted.
                            At most I would expect that admitting a historic breach in circumstances like this might make it easier for the LL to claim administration costs related to the breach and rectification of the breach (but even with admission such fees would still need to be payable under the terms of the lease.

                            If they accept the payment that should have been made, or even if they have simply requested other payments since becoming aware of the breach, it is likely that they have waived any right to forfeit so "relief from forfeiture" shouldn't come in to it. If I was you, I would make sure that payment of some sort (ground rent, service charges, etc.) had been accepted before doing anything that might be considered admission of the breach, just to be safe!

                            You need to recognise that, where leases are concerned, the answers to 'general questions' should always be treated only as a starting point before consideration of the specifics of a particular case, and whether or not these specific alter the 'general' answer.
                            On this forum I would say that 'general queries' are more likely to be considered a waste of contributors time than questions that provide the specifics.

                            Comment


                              #15
                              Originally posted by Macromia View Post
                              At most I would expect that admitting a historic breach in circumstances like this might make it easier for the LL to claim administration costs related to the breach and rectification of the breach (but even with admission such fees would still need to be payable under the terms of the lease.

                              If they accept the payment that should have been made, or even if they have simply requested other payments since becoming aware of the breach, it is likely that they have waived any right to forfeit so "relief from forfeiture" shouldn't come in to it. If I was you, I would make sure that payment of some sort (ground rent, service charges, etc.) had been accepted before doing anything that might be considered admission of the breach, just to be safe!

                              You need to recognise that, where leases are concerned, the answers to 'general questions' should always be treated only as a starting point before consideration of the specifics of a particular case, and whether or not these specific alter the 'general' answer.
                              On this forum I would say that 'general queries' are more likely to be considered a waste of contributors time than questions that provide the specifics.
                              Many thanks for your helpful input. I'm just starting from the other end. If, say my maximum likely exposure is legal costs which LL would have to justify - then that would be a better option for me than exhaustive legal analysis / determination/ defence of potential breaches. Obviously if there are much bigger risks that might change things. I'm reluctant to admit any breach without a fight as I think LL would struggle to get a determination in their favour.

                              Your points about payment of fees/ service charges and waiver of forfeit are excellent ones and well noted. How long after payment do you think I should wait before assuming their acceptance of receipt?

                              Comment

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