Lease extension- letter of consent from F's mortgagee

[camngnp223]

Hello everyone!

I was hoping for a word of advice about the process of extending a lease when the freeholder owns the freehold under the encumbrance of a mortgage. If I understand it correctly, the freeholder's lender needs to provide a letter of consent which confirms that they (the lender) agree to the extension.

My question then is this: when do we need to receive the letter of consent? Do we need to get this letter of consent before we sign the Deed of Variation and transfer the premium to the freeholder's solicitor? Alternatively, is it acceptable practice to sign and pay (taking the word of the freeholder's solicitor that the lender's letter of consent will be provided later, along with the Deed)?

Huge thanks for your advice!

Cam

[Richard Webster]

Freeholder's solicitor could give undertaking to provide consent from mortgagee. Solicitor's undertakings are easily enforceable with the threat of SRA action, so no solicitor would give one unless he is certain that he can carry it out.

[camngnp223]

Thank you!

What a wonderfully clear answer. Thank you!

Cam

[jeffrey]

Freeholder's solicitor could give undertaking to provide consent from mortgagee. Solicitor's undertakings are easily enforceable with the threat of SRA action, so no solicitor would give one unless he is certain that he can carry it out.

But is OP using a solicitor at all? If F's solicitor gives an undertaking, only another solicitor can enforce it.

[Richard Webster]

Surely if a solicitor gave a private individual an undertaking then that individual could still complain to the SRA about non-compliance and they would be in touch with the recalcitrant solicitor pretty quickly wouldn't they?

[jeffrey]

Surely if a solicitor gave a private individual an undertaking then that individual could still complain to the SRA about non-compliance and they would be in touch with the recalcitrant solicitor pretty quickly wouldn't they?

Yes. I have re-read rules 1.05 and 24 in the Code of Conduct 2007; these bear-out what you say.

[camngnp223]

Actually, as leaseholders, we don't plan to use a solicitor in this case. Your discussion immediately above thus gives us extra comfort that we can have some faith in the assurances provided (in writing) by the Freeholder's solicitor.

Again, many thanks!

Cam

[jeffrey]

Actually, as leaseholders, we don't plan to use a solicitor in this case. Your discussion immediately above thus gives us extra comfort that we can have some faith in the assurances provided (in writing) by the Freeholder's solicitor.

Again, many thanks!

Cam

I'd recommend you to use a solicitor in a complex case like this. V's solicitor is acting in the interests of V only and has no duty to you as P.

[Richard Webster]

I'd recommend you to use a solicitor in a complex case like this. V's solicitor is acting in the interests of V only and has no duty to you as P.

I agree.

Freeholders' solicitor often try to slip a few extra nasty clauses in when doing a lease extension so you need someone to check this kind of thing and advise you on it.