Hi Ho off to the FTT we go!

[DNM2012]

Absolutely. I will give them nothing. In the meantime I will enjoy the peace and quiet of not having anyone above me for a while

I think they realise they cannot continue, and hopefully will sell up!

[mattl]

Well, make sure you get paid everything before confirming this in writing, including an indemnifier that they cover any future costs for existing proceedings.

[DNM2012]

Latest is I have received written confirmation from the Leaseholder that they have remedied the breaches.

This is true as the other flat is now empty. The LH is asking me to confirm this in writing.

I will see what my solicitor advises before doing anything, but it looks like I have got the result I wanted.

[leaseholdanswers]

Injunctions are rarely a good idea as its a rare instance that you get a chunck let alone all your costs back. That is a real problem for freeholders and residents companies.

[DNM2012]

If the other party knows what they are doing then the case will get thrown out.

Luckily they don't

But it's useful to consider every possibility.

TBH the dice are rolled, I'll keep you updated on the outcome, its likely to be several months before anything further happens though.

[siva]

Subletting is allowed under the lease, subletting part of the property is not (although I have read a restriction on subletting part could also apply to the whole, an argument for another day).

It depends on the exact wording of the covenant. If the covenant distinguishes between part and the whole then subletting part does not apply to the whole. If there is no distinction then 'part' also applies to the the whole.

It is certainly capable of remedy once the current tenants leave, the property can be let as a whole on an AST no problem.

No, breach of the subletting covenant is not capable of remedy. You can't afford to be casual about the s146 notice. If the other party knows what they are doing then the case will get thrown out. See here. There are similarities with your situation.

[DNM2012]

Subletting is allowed under the lease, subletting part of the property is not (although I have read a restriction on subletting part could also apply to the whole, an argument for another day).
It is certainly capable of remedy once the current tenants leave, the property can be let as a whole on an AST no problem.

[siva]

Having now read your initial post I see that your solicitor claimed there was a breach of single family use. This would be an ongoing breach unless it has been remedied. The breach of subletting is once and for all. The breach of nuisance is once and for all unless it is still happening. It would appear from the article referred to above that it is only the subletting breach from the list you have given that cannot be remedied.

[DNM2012]

The view of my solicitor, counsel and the FTT is that it is an ongoing breach that is capable of remedy.

[siva]

I was trying to warn the OP that it's important that the section 146 is technically correct in terms of detailing breaches and specifying remedies if applicable.

I read this publication some time ago which suggests the British Courts don't take a practical approach to these matters and may dismiss a case if a remedy is specified when in fact it is not capable of being remedied.

According to that article (bottom of page 6 and page 7) there is precedent (English Court of Appeal decision of Scala House and District Property Co Ltd v Forbes) whereby assignment/subletting is deemed a 'once and for all' breach incapable of remedy.

[leaseholdanswers]

Yes it can be remedied it as a once and for all can be subject to waiver- is that what you mean?

[siva]

I haven't read through the thread so am not sure this will help but something I picked up whilst researching these matters a while back is that subletting when not allowed is a 'once and for all' breach at the time of the sublet and not something that can be remedied. Whether the other party or the Judge you get actually knows that is another matter.

[DNM2012]

Yes, we have discussed that.
As the residents seem to be transient and come and go for short periods, it is unlikely they have AST's.
But we won't know for sure as the LH will almost certainly not respond.

[leaseholdanswers]

Are they AST's or lodgers, as the former will take a bit longer and may have security of tenure, which if so, it means that court application has to be sooner as the court has to order possession on the individual rooms, as the LH cannot comply with the s146, and non compliance is inevitable. Has your lawyer looked at that?

[DNM2012]

My solicitors advice is to issue the s146 notice, giving a 'reasonable amount of time' to remedy the breaches.
As the breaches involve subletting and multiple occupancy and are capable of being remedied, 3 months seems realistic.

The LH has already had 30 months to remedy this and the FTT was clear in their determination the situation had been going on far to long and I had given the LH ample notice and opportunity before legal action.