Contradictory Lease and unreasonable Freeholder

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    Contradictory Lease and unreasonable Freeholder

    Hi there, new member hoping someone can help. I recently purchased a flat in a block that’s leasehold and purchased on the understanding of renting out. The solicitor said that it could be used for rental and since buying the freeholder has pointed out in the lease it cannot be. The lease is very ambiguous and I am now in dispute with the solicitor.
    The freeholder has said he will serve notice on any tennants I get, although the flat upstairs has been rented out for many years, apparently with no permission asked.

    Secondly, the outside of the building needs decorating and we were told that we were not responsible for the outside plus so were all the other leaseholders, of the windows and that the freeholder arranges this. Nothings been touched for 14 years and has been neglected.

    We have now been told the windows are our responsibility and we have to pay for the repair but we are not allowed to instruct anyone to do it only the freeholder can and the cost they have given us quite frankly would do the whole road.

    There are many more issues but I am trying to address the 2 most important ones, the freeholder has said he’s willing to change the lease to allow renting, again at a ridiculous cost. How can these freeholders dictate everything and get away with it and can they serve notice if I were to get tennants?

    The parts of the lease that are contradictory are attached.

    Many thanks In advance.

    #2
    I can read the clause about only allowing occupation by the leaseholder's family, but the underletting clauses are barely legible. However, I do not need to read them since the occupation clause rules out letting on the open market. Your solicitor obviously failed to spot that the occupation clause (if he actually read it) effectively rules out letting. He ought to have advised against buying a flat with such a provision in it, even if you did not intend to let it, because your circumstances might change and the market for it is reduced - though there seem to be plenty for buyers who have conveyancers who do not read leases properly. I cannot see any way round the provision. The underletting clauses, whatever they say, are not so much contradictory as a waste of ink.

    I cannot comment on the decorating issue as you have not quoted the relevant clauses.

    Comment


      #3
      Thank you so much part of the wording you cannot read which the solicitor has said is ambiguous reads...,

      Not to assign under let or part with possession of part only of the flat.Not to assign or part with possession ( other than by way of underletting as a whole to any person who has not entered into a direct covenant under seal with the lessors to pay the rent and service charge hearty reserved and to observe and perform the covenants here in contained.

      Comment


        #4
        I cannot see anything ambiguous about the clause. It is though badly thought out and is another I would have explained is unsatisfactory. It is unreasonable to require a tenant on a short term tenancy to pay the rent and perform all the covenants contained in the lease. Whether ambiguous or not is pretty irrelevant when the property can only be occupied by the lessee and his family.

        Comment


          #5
          Is it possible that 'lessee' in the first extract could be read to be a tenant of the o/p?

          Comment


            #6
            Originally posted by Lawcruncher View Post
            I cannot see anything ambiguous about the clause. It is though badly thought out and is another I would have explained is unsatisfactory. It is unreasonable to require a tenant on a short term tenancy to pay the rent and perform all the covenants contained in the lease. Whether ambiguous or not is pretty irrelevant when the property can only be occupied by the lessee and his family.
            What is the point of putting all this in as it’s itrelevant if it cannot be let out?

            Comment


              #7
              Originally posted by Ferndale View Post

              What is the point of putting all this in as it’s itrelevant if it cannot be let out?
              It's a standard lease clause that refers to letting 'part only' hence irrelevant to OP.
              If flat was bought to let and solicitor was thus aware then surely OP has a case against him

              Comment


                #8
                Originally posted by Ferndale View Post
                What is the point of putting all this in as it’s itrelevant if it cannot be let out?
                There is no point. Many leases do not hang together properly. At the core of every lease is a precedent taken from a book. With rare exceptions, precedents in a precedent book hang together. Unfortunately, they get changed by clauses being tinkered with or removed or by having new clauses added. Whenever a precedent is amended a check should be made to see if consequential amendments to other clauses are required. Many draftsmen fail to pay the necessary attention to ensure not only that a document is internally consistent, but also that each clause is clearly worded. The same care needs to be taken when approving a document. Leases are long and complex, but that does not excuse bad drafting or failing to spot defects in drafting. Legal drafting is trickier than people realise and even excellent lawyers can get the odd clause wrong or fail to spot an ambiguity. However, anyone charging a fee should get the basics right.

                Comment


                  #9
                  Thank you so much , shame things have to be so complicated. My questions now then are, I believe I have been mid informed and my solicitor has been negligent, do you agree?

                  secondly if I did get tennants in my flat what can the freeholder do, upstairs has been rented for years, he thinks he can serve notice but I don’t think you can serve notice on someone’s tennants?

                  Comment


                    #10
                    The freeholder can't serve notice on your tenants, that is correct.

                    What they could do is commence action against you for the breach of the lease and, theoretically, you could lose your property.
                    While it probably wouldn't get that far, it could cost you a lot in legal fees.
                    And you would be in breach, so the outcome is inevitable,
                    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).

                    Comment


                      #11
                      Thank you, so do you think I was mid Advised then ? I know they won’t bother taking the owners to court upstairs die to cost so seems unfair now, I believe I should be compensated for my solicitors mistake, could you comment on this?

                      Comment


                        #12
                        If the upstairs flat has been rented out for many years with no permission asked and continued to receive ground rent from that flat , I believe there is an estoppel preventing the freeholder applying the terms on letting against other flats. Your case is stronger if there has been no maintenance for last 14 years, which means the freeholder has neglected to comply to the freeholder's covenants under the lease.

                        Comment


                          #13
                          Originally posted by Ferndale View Post
                          Thank you so much , shame things have to be so complicated. My questions now then are, I believe I have been mid informed and my solicitor has been negligent, do you agree?

                          secondly if I did get tennants in my flat what can the freeholder do, upstairs has been rented for years, he thinks he can serve notice but I don’t think you can serve notice on someone’s tennants?
                          If you have evidence that the solicitor has misinformed you, it could potentially be worth trying to argue negligence, but it is likely to depend on what you can prove was said.
                          If you don't have evidence confirming that the solicitor was aware that you were buying the flat with the intention of renting it out, and that they confirmed that you would be able to do this, you might not have much chance of success.


                          Originally posted by jpkeates View Post
                          The freeholder can't serve notice on your tenants, that is correct.

                          What they could do is commence action against you for the breach of the lease and, theoretically, you could lose your property.
                          While it probably wouldn't get that far, it could cost you a lot in legal fees.
                          And you would be in breach, so the outcome is inevitable,
                          The effect of what jpkeates has said here, is that you would be required to serve notice on any tenants that you rented the flat to as a condition to avoid forfeiture of the lease and loss of ownership. Removing this breach (either by serving notice or paying whatever fee the freeholder demanded to give permission to sublet, which would potentially be even higher than they are currently asking, would almost certainly be a condition to avoid forfeiture).

                          Comment


                            #14
                            Originally posted by Gordon999 View Post
                            If the upstairs flat has been rented out for many years with no permission asked and continued to receive ground rent from that flat , I believe there is an estoppel preventing the freeholder applying the terms on letting against other flats. Your case is stronger if there has been no maintenance for last 14 years, which means the freeholder has neglected to comply to the freeholder's covenants under the lease.
                            That is likely to be a very risky argument to try to make.

                            Ignoring the fact that there may be an agreement between the freeholder and the leaseholder of the upstairs flat to allow subletting, any 'estoppel' argument can only apply between the parties to a contract - and two separate leases are two separate contracts which may have different terms.

                            If there is no agreement in place allowing the upstairs leaseholder to sublet, then _they_ can potentially use the estoppel argument if they have been subletting _with the freeholders knowledge_ for 'many years', but it does not follow that other leaseholders can argue that they should be allowed to sublet because another leaseholder has been doing so (especially when they have been told that they cannot).



                            Maintenance is a separate issue, and we don't know what the lease says about this.

                            Comment


                              #15
                              I have both in writing and verbally correspondence from my solicitor as we told him we wanted to rent the property and the freeholder had come out and shouted it couldn’t be let, hence this was paramount that we could. So I am hoping that we have a case as we are now stuck with a property we cannot rent and will have to sell , we have many losses.

                              With regards then to the exterior work having been left for so long, I believe they have breached the lease and to charge just our flat also £7,000 for 3 windows and a front door plus a bit of guttering is unreasonable.There must be help for owners to stop this from happening. There are many other things they have done and seem to do as they please.

                              Comment

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