Can I let out my flat?

[Lawabidingperson]

I live in a ground floor flat. I have a share of the freehold and also have the lease etc. There’s only me and upstairs.
do I need permission from the other freeholder to let? The lease agreement is confusing. Also will the new tenants have to sign with upstairs so they follow the lease?
also upstairs has wooden flooring and refuses to change it even though the lease states carpet, underlay or other suitable flooring. They keep saying that wooden flooring is suitable. It’s caused problems due to noise.
I have attached a load of photos from the lease.
thank you in advance!
Sorry if this is repeated from other postings.

[Lawabidingperson]

[Gordon999]

This is not legal advice on the requirements in your lease.

1. If your freehold was owned by a third party company, the you would be asked to follow the terms under the lease and probably pay dearly for subletting consent.

2. If you and the upstairs leaseholder are the joint owners of the freehold title, then both of you could have a meeting and agree to waive some of the terms of the lease.

3. If you already know the upstairs flat leasehold is in breach of the lease due to having wooden floors, then its unlikely to result in a serious problem if you do sublet to one family under 1 year AST agreement with voluntary break at 6 months .

All the upstairs leaseholder can do is ask you for the subletting be terminated for breech of the lease.

[Macromia]

I would suggest that, as you are a joint freeholder in a property with only two leaseholds flats, the most sensible thing would be for you to negotiate with "upstairs". Although this will partly depend on how much you want to push the 'flooring situation'.

Your lease does seem to allow subletting, but requires the sublet to be registered with the 'freeholder's solicitors' and the payment of some sort of a fee (that part of section 3.17 is cut off in your photo).
It also seems that the lease requires any subtenants to sign a covenant that requires them to adhere to the requirements of the lease. All restrictions within your lease should be included in the tenancy agreement that you agree with any subtenants anyway, even if there is no requirement to sign a covenant with the freeholder, because if your subtenants breach the lease the freeholder can potentially use this against the leaseholder.
Proper legal advice before going ahead with a sublet is recommended.

You might be able to reach an agreement with "upstairs" to set aside some requirements of the lease, but if you do so you should get this in writing after taking legal advice on what the agreement should say (it needs to hold if the upstairs freeholder sells up and moves out. It will also mea that you will be unable to change your mind about anything that you have agreed (e.g. if you agree that the wooden floors are OK, you will not then be able to change your mind if you find that no one stays in your flat longer than the minimum term, and no one will buy the property, due to complaints of noise from above).

Your best option is probably to follow the requirements of the lease to the letter (once confirmed by a suitably qualified solicitor) and take any sublet registration costs into account when deciding how much rent to charge - if the local market is sufficient for these costs to be covered (and if the market can't cover the costs that you would have, then subletting the property potentially isn't worth trying anyway).

[Lawabidingperson]

So if I wanted to rent out my flat I would definitely need an agreement from the other freeholder/leaseholder? Or at least something in writing?
would just sending the leaseholder/freeholder a signed copy (from the new renters) of the lease be enough?
sorry for the questions, I know I will need to consult a solicitor but its good to get a bit of background understanding fi
Also it says on another posting that freeholders/leaseholders don’t need to give permission to rent out the property, but the lease seems to say that a mutual new ‘contract’ needs to be made between any new ‘tenants’ and leaseholder/tenants to ensure that the lease restrictions are followed.

‘Each of the tenants hereby further covenants with the Landlord and as a separate covenant with each of the other tenants that if he shall assign or sublet the whole or any part of the flat he shall procure the assignee or sublessee (as the case maybe) simultaneously with the execution of the transfer or sublease to execute this deed and the provisions hereof shall read and construed and shall take effect as at the several respective dates at which the tenants shall sign their names and affix their seals accordingly.’

[Gordon999]

The clause you have posted really applies to sale of the flat.

As 50% freeholder, I think you can decide to sublet without requiring your tenants to enter into a separate covenants with other 50% freeholder.

[Macromia]

The clause you have posted really applies to sale of the flat.

The quote clause specifically mentions subletting, so is not solely regarding sale of the flat.

[Gordon999]

The 50% freeholder has right to waive any terms under the lease for his own flat such as stop paying ground rent.

[Lawabidingperson]

The 50% freeholder has right to waive any terms under the lease for his own flat such as stop paying ground rent.

how is that possible? Surely the lease is there for a reason and should be followed. I looked it up online and even if you own a share of the freehold the lease must be followed. Yes both freeholders can decide if not to pay ground rent etc but surely assignment of the lease through sale or sublet it should be followed. This is the reason I’m asking as I don’t want to be caught out and have any problems in the future.

[Gordon999]

I suggest you prepare 2 copies of a draft agreement for signing by the joint freeholders:


We , Tom Jones and John Smith are the joint freeholders of 88 Garden Road, Toy Town and leaseholders of the two leasehold flats .

We have agreed to the following changes to the lease :

1. No annual ground rent shall be demanded from each flat.

2. Annual Maintenance repairs to the building shall be contributed 50% by each leaseholder . The annual contribution may include a reserve fund for external painting at 5 yearly intervals.

3. Buildings Insurance shall be contributed 50% by each leaseholders. The policy holder will include names of both leaseholders.

4. Subletting under one year AST agreement is permitted without requiring the rental tenant to enter into covenants direct with freeholders.

5. In the event of sale of flat, the costs of transferring 50% share in the freehold title to new leaseholder shall be paid by the departing leaseholder.

Signed by Tom Jones and John Smith.

Dated 26 July 2020.