No Subletting clause

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    No Subletting clause

    Hi,

    I am the leaseholder of a flat in a converted house in London.I bought the flat as a buy-to-let and have had various tenants over the last twelve years.

    There are two other converted flats in the building and the owners share the freehold which they bought five years ago.

    While our solicitor was negotiating to correct some errors in our lease he found a clause that states I can: "use the flat as a private dwelling for the lesee and his family and for no other purpose."

    Could the freeholders stop me from letting my flat? Would the fact that they have known about my lettings for the last twelve years have any relevence if they chose to enforce this clause?

    Ahd how would they enforce it if they chose to do so?

    Thanks,

    Tom.

    #2
    The clause does not strictly prohibit subletting, but does seem on the face of it rather to rule it out. I do think though that there is any need to consider the precise effect of the clause because, as you suggest, any breach must by now have been waived.

    Comment


      #3
      Reading the last post by lawcruncher I am concerned that it might be mis- read. Let's accept that the cause precludes subletting. Though there may have been earlier breaches they have been remedied by those lettings coming to an end.

      A future under letting would therefore be a new breach and I would suggest your solicitor has a quick look through case law ( as it's too late to look it up!) to see if there are any precedents that help you. There are more than don't...

      You have strong argument that no action has been taken in the past however the FH can argue that they felt no need to act. Now that your future tenant decides to have his friends from the clog dancing yodelling group round for practice.

      The second point is that its tempting to read the lease as far and you want to to, and I would keep reading to see if there are other clauses related to underletting and assignment. If so then it is a question of how the overall lease can be interpreted.

      In short there is a risk that they could, more so if there is a breach and it is a question of risking winning the argument at the LVT.

      Perhaps your Solicitor should be negotiating to amend the lease perhaps restricting it to lettings on, at worst, single family occupation which is close to the spirit of the clause quoted.
      Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

      Comment


        #4
        Originally posted by leaseholdanswers View Post

        You have strong argument that no action has been taken in the past however the FH can argue that they felt no need to act. Now that your future tenant decides to have his friends from the clog dancing yodelling group round for practice.
        Ha..on the newly laid wooden floors .. A delightful sound.
        Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

        I do not accept any liability to you in relation to the advice given.

        It is always recommended you seek further advice from a solicitor or legal expert.

        Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

        Comment


          #5
          LHA is quite right that, if the clause precludes sub-letting, each new sub-letting is a fresh breach. However, I think there has to come a point where if a landlord fails to object to a series of one-off breaches of the same covenant the covenant is deemed to be waived.

          As for asking the covenant to be modified, the OP is in a classic dilemma. He has been sub-letting for years and no one has objected. Should he keep his head down or raise the matter thus alerting the landlord of the clause's existence?

          Comment


            #6
            Originally posted by Lawcruncher View Post
            LHA is quite right that, if the clause precludes sub-letting, each new sub-letting is a fresh breach. However, I think there has to come a point where if a landlord fails to object to a series of one-off breaches of the same covenant the covenant is deemed to be waived.

            As for asking the covenant to be modified, the OP is in a classic dilemma. He has been sub-letting for years and no one has objected. Should he keep his head down or raise the matter thus alerting the landlord of the clause's existence?
            The first really comes down to argument and the landlord's approach in the past, as if they were aware and deliberate chose not to act,at the very least the LVT would lean towards the leaseholder - the case law that there is really comes down solidly in the landlord's favour, any "mitigation" has been on the basis of what they have done in the past and the seriousness of the current breach.

            The second bit is a dilemma however they still have to look at the wording for instance to see if a "lessee" can be construed as an underlessee, or that the lease is contradictory through poor drafting.
            Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

            Comment

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