Subletting application problem / legalities

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    Subletting application problem / legalities

    From investigations, an application for permission to sublet should be sent to the registered office of the Managing company, (there is no agent).

    A leaseholder is not asking the Company therefore I assume if no application is received, then permission canot be granted or refused ?

    But in the course of a dispute, parking, the usual at flats, one of the directors wrote to the leaseholder on that matter and mentioned some points on subletting regarding the covenants of the lease, in which the leaseholder's initial letter mentioned they were to sublet their flat and hoped it would be granted.

    The director the leaseholder wrote to, and to their home address 400 miles away is not the Company Secretary and not the registered office.
    The Company Secretary has written to the leaseholder and stated all applications should be requested via the registered office and not to an individual Director, and also stating
    S196 Law of Property Act 1925
    Any notice required or authorised to be served or given by this Act shall be in writing and requires an application for consent to be physically delivered to the landlord’s last place of abode or business or sent using recorded delivery.

    Am I being nit picking in requesting the law be upheld and that although mention of subletting was advised to a Director, the leasholder has not, and probably wont, ask the Company Sectretary nor apply to the head office.

    Can we or the Company secretary ignore the initial mention of subletting until S196 Law of Property Act 1925 has been fulfilled ? and not by telling one director 400 miles away, who does not have any information nor pre printed sheets on what the company requires as a precursor to a licence .

    #2
    Ok you have put in all down on paper, but could you re read it and ask " would someone, unfamiliar with the situation, understand what I have set out and the questions that I need answers to ".
    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


      #3
      OK.

      A leaseholder has mentioned in passing, to a Director miles away from the area, while commenting on his breach of the lease, that he intends to sublet and hopes the directors will see fit to agree to the sub letting.

      The Director replied on the Companies headed paper, quoting verse for verse the covenants of the lease regarding subletting.
      No other information was provided on subletting.
      The leasholder has not written to the Lessor, at the registered address, to formaly request permission to sublet.
      The lease also states to get permission from the lessor, not from one Director at their private address.

      Since then, letter has been delivered to the leaseholder, stating he must apply to the freeholder at the registered address for permission. So far no such application has been received.

      Question one. Are we safe not to consider an application to sublet if no application has been sent to the registered office, after the leaseholder was told to apply to the registered office, and will we be safe from being fined for not replying with permission or refusing permission within a reasonable time.

      Question two. Are we safe to obey S196 Law of Property Act 1925 ( First post ) and wait for his application, and if none comes, then we cant be fined for not giving permission to sublet.

      Thanks, I hope this reply coupled with the first post is better, and the reason for this is the leasholder does not want to observe any part of the lease and argues all the time that he causes no problems.

      Comment


        #4
        One. No service on a director is entirely adequate. As an office of the company they have to deal with this rr pass it on internally to those that do.

        Two. No as above. NO you cannot fine him it is a question of he is breach of the lease in not seeking consent.

        In this case I cant see your problem, either give him consent or don't, though there are very few grounds to argue that consent cannot be given. If there is problem with parking deal with that too.
        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


          #5
          Originally posted by leaseholdanswers View Post
          One. No service on a director is entirely adequate. As an office of the company they have to deal with this rr pass it on internally to those that do.
          Thanks, does that mean that although the application has not been made to the Registered office, that the company has in fact received an application to sublet ?
          The problem is, that we need to insist that an application be made to the head office and not to an individual director, otherewise we can say no application has been received at the office.

          Another problem is the said director can be seconded to the One World trade Centre ( replaces the Twin towers in New York ) for a month at a time, and will not receive any letters sent to their home address for a month. Is this not acceptable for a leaseholder to refuse to contact the head office ?

          We want to say, if you don't apply to the head office, we cannot assist you.

          Originally posted by leaseholdanswers View Post
          Two. No as above. NO you cannot fine him it is a question of he is breach of the lease in not seeking consent.
          You has misinterpreted the question.
          It is not about fining the leaseholder, but the leaseholder taking us to court if we do not respond to his application within a reasonable time.
          If he refuses to write to the freeholder at the freeholders address, but instead writes to a director ( who can be out of the country for a month ) has the company received his aplication even though it was not addressed to the company, nor sent to the head office.

          A bit like sending a request to sublet to a director who lives in Australia !

          Thankss so far.

          Comment


            #6
            Well I am not surprised if I have misunderstood anything given the word salad of a post

            As I said, no matter what method or address you choose, how can you say to a Court or Tribunal that the application served on a director as an an officer and agent of the company was not in fact served? In short you can't it is good service- the director must deal with it or pass it on as the company set up has determined e.g. by the managing agent.
            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


              #7
              Continued..


              Yes it is awkward of them however while you can argue over whether service by a leaseholder is affected on say your home when you are away for a month at a time there are few similar obligations on a leaseholder and an officer of a company, a director, can hardly say that they, and in the company were not served. if it is sent to someone in Australia and they can prove tha tit was received then it has been served. Sadly there are some awkward buggers about

              The fact that the leaseholder is abroad is of little relevance to where they serve you, as long as they can assert that service, as above is good. if as I have to guess, again, that the issue is "how do we reply to him if he is away" then there are two choices

              1 as a rule and before the event notify all owners that you will rely on service under s196 at the property unless they the leaseholder notify them of an alternative address.

              That said a court or tribunal will still be at ill at ease with sole reliance on this, as in this case "Freedom" is hardly a very hard to find location, the USPS is as about as efficient as Royal mail and most of the big name courier companies are from the US and have should have no problem finding them and getting a signature. Royal Mail will do it for £52 about the same as a process server in NY.

              2 Similarly if you know where then do you know with whom and therefore a simple call about an email address might mean that you can reply.
              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


                #8
                It is necessary to distinguish between notice provisions which are permissive and those which are mandatory. Words such as "may" and "sufficient" indicate a permissive provision. Words such as "must", "shall" and "if and only if" indicate a mandatory provision. If any provision as to where notice may be served is permissive then serving elsewhere cannot be ruled out if it is a recognised place where service may be made. Additionally, if it can be shown that the notice was received then it will have been served. If the provisions are mandatory then service at the wrong place will not be good service, even if it is shown that the notice was received.

                The provisions of section 146 LPA 1925, apart from subsection (1) which requires the notice to be in writing, are permissive. The section is a fallback for cases where in property documents no provisions for service are set out. If specific provisions are set out they override the section so far as they are inconsistent with it. That means that the first port of call has to be the lease. If it is silent or incorporates the section then you refer to the section. Otherwise you go by the lease.

                If the position is that there are no mandatory provisions as to where service should be effected if the landlord is a company, then it is probably unwise to assume that service at the home address of a director (though not recommended) is bad service. After all, a company is not an individual and can only operate through its officials and employees.

                Anyway, none of above is relevant to a request for a licence to sublet. The Landlord and Tenant Act 1988 imposes an obligation on a landlord to make a decision within a reasonable time of receiving the request. The obligation arises under the statute and accordingly anything the lease says is irrelevant. Further, even if sending a request to a director is not service of the request on the company, the Act imposes on the director an obligation to pass on the request. In short, once the company gets to know about the request (and it is going to be a bit tricky to argue that the company is not fixed with notice of the request if received by one of its directors) time starts to run. Bear in mind that undue delay in responding may lead to the payment of damages.

                Comment


                  #9
                  Yes I would agree as there are two broad concepts here.

                  1 Where contracts the law or precedent dictate an action ie "do" or a generalised requirement that parties have to show that they have complied.

                  2 Routine exchanges.

                  The fact that your are required to have a registered office and give notice of addresses for service and location are simply so that those dealing with you, be it the authorities or shareholders or tenants/leaseholders, actually have an address for their benefit. it is therefore a matter of the C or T deciding that while you do provide such addresses, is the service invalid if it goes to an officer of the company. I'd doubt that they would agree with you: sorry.

                  As lawcruncher has pointed to specifics, if for example your notification under s47/48 identify the landlord being at the registered office and none of the board are actually there, or any aspects of that notices is defective, then the leaseholder is able to argue that they had no confidence in those addresses and that service at home or a directors registered service address would be sufficient.

                  Your biggest headache is in fact accepting that the clock has started ticking, as LC points out, and making sure that you are in contact with the leaseholder as above.

                  it is trite law that dealing with consents to underlet allows you to recover your costs and that they are a buy let and hide landlord who has rather discourteously failed to provide you with a means of contact, which requires you to go to some length to find them or serve notice on them, will be sympathetically received by the C or T.

                  yes its annoying but no more so for most Man Cos and frankly the more of you play oneupmanship with addresses, the more you will realise that the burden falls on you, the man Co, to be the better man. And stick with a big bill of costs!

                  As per the per the earlier notice that you will rely on s 196 you can add that you reserve your position on costs should they not cooperate or follow the set out procedure for underletting.

                  In 2014 I still am surprised at how many people look at me as if I have the mind of Solomon when they moan that they were on leave when the notification came etc and I suggest that they have say "SophieP.ABC Mansions@ a free mailer. com" address just for these matters.

                  You can pick up messages almost anywhere. Even if you are in Iraq fighting Jihad- consent to let must be sought Y
                  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


                    #10
                    Thank you both for your input and my delay in responding is that I was not getting emails informing me of replies, even though I went into my account and clicked on receive instant notification.

                    I think i got the wrong end of the stick regarding S196 as that is an obligation on the company to serve in writing to the leaseholder. I thought it was an obligation on the leaseholder to put in writing, but I think I was wrong.

                    Anyway, as mentioned, the clock starts ticking, but the company, from the companies address has written to the leaseholder informing him that a request to sublet must be requested from the Company and to the compnaies registered address and not from an individual Director.
                    He knows the address already, and has been reminded to ask permission from the freeholder

                    To date no such request has been received, and it's been 3 weeks since it was mentioned and we still have not replied.
                    I stated the director, in this post but not to the leaseholder, that the Director can be away from the country for a month to 6 weeks, which is why we cannot accept requests going to an address that is not the companies address.

                    Therefore, are we OK to still wait for the request that will never come ?

                    Question two.
                    We have standard forms sent out with information we require when subletting but one form states asking for a copy of the tenancy agreement, which in the lease has to be provided within 28 days, but our rules and regulations state we must see a copy of the ternancy agreement or draft with the names on, weeks before the tenancy starts.
                    On the form it says - Formal consent cannot be provided until the tenancy agreement has been provided -

                    Is this correct and can we withhold permision to sublet until a copy of the proposed tenancy agreement is deposited with the company ?

                    Thank you for your help in advance.

                    Comment


                      #11
                      The plain fact here is that however you look at it the company knows about the request and ought to get on and deal with it. Arguments along the lines of : "A request should not be sent to such and such a director because he lives 200 miles way and may be absent from home for an extended period" are not going to hold much water if the director is in fact at home and passes the request to the right individual. A letter to the effect that: "We have received your request for a licence to underlet via Mr Smith but decline to action it until you repeat it by making a direct application to the above address" is going to look pretty silly in the full glare of a court room.

                      As to question 2, what does the lease say? Who made up the rules and regulations and are they binding?

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post
                        As to question 2, what does the lease say? Who made up the rules and regulations and are they binding?
                        Thanks again. We understand completely that if a director, and not the company address receives request to sublet, that request should be forwarded and we will act on that now, and give permission this week.

                        The problem we are trying to prevent is the leaseholder continuing to write to the director who is just too soft and does not have a full grasp of the law, and is away from home a lot, and we will get to a situation where same leaseholder will continue to write, and not get a reply in "reasonable time".

                        Question 2 post 10
                        our rules and regulations state we must see a copy of the ternancy agreement or draft with the names on, weeks before the tenancy starts.
                        On the form it says - Formal consent cannot be provided until the tenancy agreement has been provided -

                        the question asked was, Is this correct and can we withhold permision to sublet until a copy of the proposed tenancy agreement is deposited with the company ?

                        The rules and regulations, I am told were instigated by a majority vote stating that we must see the copy of the tenacy agreement before it is signed, and our lease alows us to make additional rules and regulations for the safety and comfort etc of all.
                        I am told that no previous leaseholders that let their flats would not comply with the lease and did not put in the tenancy agreements that the tenants should observe the headlease. it says that in the lease that they must, that puts us at a disadvantage if not included in the tenancy agreement.
                        Therefore it was stipulated that we must see the tenancy agreement first so that we could see that the phrase To observe the headlease has been included.

                        I suppose the phrase Formal consent cannot be provided until the tenancy agreement has been provided is to be able to check the headlease phrase has been included, as it's too late if not, after the tenants are in ?

                        Comment

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