Consent to Let from freeholder - required?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Consent to Let from freeholder - required?

    Hoping someone knowledgeable in such matters can help here, but my understanding of the lease implies consent to let is not required for the whole property until the last 14 years. However is that contradicted by c) or is that only to notify of changes to Tenant/Lessee?

    The wording from the lease:
    a) not at any time during the said term to assign underlet or otherwise part with the possession of any part (as opposed to the whole of the demised premises) or the Landlord's fixtures and fittings therein contained
    b) not during the last fourteen years of the said term to assign underlet or part with the possession of the whole (as opposed to any part) of the demised premises or the said Landlord's fixtures and fittings without the previous consent in writing of the Lessor such consent not to be unreasonably withheld
    c) on any assignment of this Lease or underletting (as the case may be) to obtain a direct covenant from such assignee or underlessee with the Lessor to pay the rents hereinbefore reserved and observe and perform the Lessee's covenants and conditions herein contained


    Also I presume the following means that any notification of changes (i.e. that an agent or tenant was taken on) would also require a fee?

    within twenty-one days next after any transfer assignment charge underlease (whether mediate or immediate) or devolution of the demised premises to give notice in writing of such transfer assignment charge or devolution and of the name address and description of the Transferee Assignee Chargee or person upon whom the relevant term or relevant part thereof may have devolved or of the Lessee (as the case may be) to the Lessor or the Lessor's solicitors and to produce to the Lessor or the Lessor's solicitors the instruments of transfer assignment or devolution or the counterpart of the Lease or a true copy of any such Deed and pay a fee of Ten Pounds plus Value Added Tax for each such registration


    Any assistance on this would be appreciated!

    Thank you.

    #2
    Our lease Have almost the same wording

    You will need to serve notice on the freeholder of the sub-letting paying the fee of £10

    You will also need to liaise with the freeholder and have their solicitors draft the necessary deed of Covenant expect to pay around £150 plus Vat for this, if they use a city firm expect up to double that

    Comment


      #3
      Your understanding is correct and is not affected by paragraph (c). Paragraph (c) is however most unfortunate as it requires you to impose an unreasonable obligation on a short term tenant. Did your conveyancer point this out when you bought?

      The other clause you quote means just what it says and no more. If you grant a tenancy you must give notice to the landlord or his solicitor (not both), supply the documents specified and pay the fee. You are not required to notify anyone other than the landlord or his solicitor, supply any documents other than those set out, pay anyone other than the landlord or his solicitor (not both) a fee or pay a fee exceeding ten pounds plus VAT.

      Comment


        #4
        Originally posted by flatpackman View Post
        You will also need to liaise with the freeholder and have their solicitors draft the necessary deed of Covenant expect to pay around £150 plus Vat for this, if they use a city firm expect up to double that
        Assuming there is nothing in the lease which requires it, not necessary at all. The obligation is to obtain a direct covenant. So long as the covenant is obtained the obligation is met.

        Comment


          #5
          Originally posted by Lawcruncher View Post
          Your understanding is correct and is not affected by paragraph (c). Paragraph (c) is however most unfortunate as it requires you to impose an unreasonable obligation on a short term tenant. Did your conveyancer point this out when you bought?

          The other clause you quote means just what it says and no more. If you grant a tenancy you must give notice to the landlord or his solicitor (not both), supply the documents specified and pay the fee. You are not required to notify anyone other than the landlord or his solicitor, supply any documents other than those set out, pay anyone other than the landlord or his solicitor (not both) a fee or pay a fee exceeding ten pounds plus VAT.
          Thank you for the prompt reply.

          Nothing was pointed out by a conveyancer on this point, no. I've lived in the property for ten years but now looking to rent it, so unaware of this and what it impacts?

          What is the relevance of mentioning a short term tenant or is it suggesting that each and every tenant would require the same notification and/or fee?
          If for example, the tenancy was handled by an agency, would that count as the one and only notification to the landlord/solicitor that tenancy was to take place and any future tenants would be covered?

          Comment


            #6
            The freeholder isn't the most responsive on these matters unfortunately, so liasing isn't going to be quick.

            If a fee is paid (once) and notice provided to both landlord and solicitor, how long should I reasonably have to wait for a response on it - if at all? I certainly do not want this to impact other matters due to them being slow.

            Comment


              #7
              The way I'm reading it you don't have to wait for the freeholder at all, just notify them after you get a tenant.

              Your problem is obtaining a direct covenant with your tenant(a costly deed of covenant written up by a solicitor), in addition to an AST. Perhaps Lawcruncher will advise further, but it would seem such a deed would be making your tenant responsible for ground rents and possibly even service charges.

              Comment


                #8
                Originally posted by andybenw View Post
                but it would seem such a deed would be making your tenant responsible for ground rents and possibly even service charges.
                It is standard practice in A.S.T's and deeds to state to observe the lease, "except for the payment of ground rent and service charges".

                Comment


                  #9
                  Originally posted by ram View Post
                  It is standard practice in A.S.T's and deeds to state to observe the lease, "except for the payment of ground rent and service charges".
                  Yes, but read the whole thread. The op's lease requires a direct covenant between himself and any tenant so here could well include ground rent and service charges. In fact rent is specifically stated. Possibly the op's lease is incompatible with subletting through AST.

                  Comment


                    #10
                    Originally posted by andybenw View Post
                    In fact rent is specifically stated. Possibly the op's lease is incompatible with subletting through AST.
                    Then the tenant pays the ground rent "Direct" to the freeholder. And when he does not, then poor old BigMc has his flat forfeited for none payment of ground rent.
                    Nice one !

                    A.S.T's will ( if the agent is any good ) state to obseve the lease except for the payment of service charges ( and ground rent, but seems to be an issue here ).

                    You can always say, the tenant gave the owner of the flat, the ground rent for him to pass on ---- job done. and anyone can pay the ground rent, the tenant, the owner, uncle Fester.
                    So long as the greound rent goes into the account, then it has been paid.

                    If you want to tell your subtenant that service charges are variable depending on the maintenece required, and they are liable for between £ 1000 and £20,000 service charges, ( new lift and roof required at £20,000 and they wont be told in advance what they will be, cos they are not the leaseholder, then do so, but you wont get any tenants to agree to that .

                    Comment


                      #11
                      I don't really get where you are driving at ram. You don't half ramble on sometimes.

                      In my opinion the op will not be able to let out the flat due to his requirement to directly covenant with any possible tenant. A direct covenant will require a deed of covenant between himself and tenant. This is much more onerus than an AST and an average tenant would baulk at signing such a deed. Are you agreeing or disagreeing with me? Or are you saying ignore the lease and simply let on an AST?

                      Comment


                        #12
                        Originally posted by andybenw View Post
                        In my opinion the op will not be able to let out the flat due to his requirement to directly covenant with any possible tenant. Are you agreeing or disagreeing with me? Or are you saying ignore the lease and simply let on an AST?
                        First, the deed is between the Lessor ( freeholder ) and sub-tenant and not the leaseholder.
                        I often send out single sheets of paper marked Excecuted as a deed where the sub-tenant agrees to observe the lease, except for the payment of ground rent or service charges, and is a contract between sub-tenant and freeholder.

                        So it's a simple matter for sub-tenant to sign at the letting agent, who passes it on to the leaseholder who passes it on to the freeholder.
                        No solicitors needed, no cost to the freeholder, apart from time.

                        If the is a problem with the ground rent, then I would pay the ground rent 4 years in advance, therefore there is no ground rent for the sub-tenant to pay. ( you cannot pay the ground rent if it's already been paid ) and sub-tenant has been told it's been paid 4 years in advance.
                        Ours is £3 - 14 shillings so no hardship there.

                        so, what to do ?

                        You write to the freeholder, or the agent if there is one, and ask what are the proceedues to let the flat.
                        They will come back with what is needed, then you ask questions on here if it's problematic, but until a response from the freeholder or man. agent is obtained, we are in the dark, as the freeholder or agent may just say- yes, you can sublet, and this is what you have to do.

                        So, BigMc, what has the freeholder / agent said ?

                        Comment


                          #13
                          Ah, I see where you are coming from now. I was reading Lessor as being Lessor to the sublease, on second reading I see it is not.

                          The trouble the OP has is dealing with the unresponsive freeholder who may through his unresponsiveness drive potential tenants away, as the deed will be required prior to being able to issue the ast.

                          Are you're 'executed as a deed' sheets strictly legal? I would have thought a deed would normally be signed by both parties and witnessed. At least thats been the way with any deed I have ever signed?

                          Comment


                            #14
                            Freeholders deed required from Sub-tenant

                            Originally posted by andybenw View Post
                            Ah, I see where you are coming from now.
                            Are you're 'executed as a deed' sheets strictly legal? I would have thought a deed would normally be signed by both parties and witnessed. At least thats been the way with any deed I have ever signed?
                            Are ours legal ?
                            Probably.
                            We may soon have it tested as the freeholder may be suing a tenant direct for failing to observe the lease as they have promised the freeholder they will, via a signed document.

                            The deed is not 2 way, or "The written promise" to observe the freeholders covenants is not 2 way.
                            It's a one way promise by the sub-tenant to observe the lease with no promises from the leaseholder, hence no signatures required by the freeholder ( in my opinion and via information received ).
                            Permission request to sub-let and the freeholders authorisation to sublet, is 2 way.

                            If you write a letter to someone saying you will repay the loan of £ 1000 they lent you, and to pay it all back within 6 months, and you don't, then that letter will hold up in court if you don't pay on time. Only one signature required.

                            For others reading this.
                            Why does the freeholder need a deed ?
                            Because the freeholder only has a contract with the leaseholder to observe the lease, but has no contract with any sub-tenants therefore the same must be obtained from any sub-tenant.
                            It saves legal strife when no deed obtained where the leaseholder states "i did not park my car there and cause an obstruction, my tenant did", and the courts find in favour of the leaseholder, and finds the leaseholder not guilty, as you can only sue those that have agreed to obey the lease. ( in very basic form written here, but there are other ways to sue a sub-tenant without a deed )

                            hope that explains "my" reasoning, having been through a few pre court / pre F.T.T. heated letter exchanges.

                            Comment


                              #15
                              Originally posted by andybenw View Post
                              Are you're 'executed as a deed' sheets strictly legal? I would have thought a deed would normally be signed by both parties and witnessed. At least thats been the way with any deed I have ever signed?
                              In land law and landlord and tenant law, to be valid a deed needs to be signed by the "grantor" that is the person transferring or creating an interest, giving security or making a promise. So, a transfer of land needs to be signed by the transferee, a lease by the landlord, a mortgage by the borrower and a guarantee by the guarantor and so on. The "grantee" (transferee, tenant, lender etc) should in theory execute the deed if he is agreeing to do something or making a declaration. However, the failure of the grantee to execute the deed is not fatal to the validity of the deed nor does it mean that the grantee is not bound by the covenants on his part or any declarations. "Equity regards as done that which ought to have been done." A grantee cannot take the benefit of a deed without also taking the corresponding burdens.

                              In the case of a deed by which an assignee or undertenant covenants to observe the terms of the lease the landlord is not agreeing to do anything and therefore does not need to execute the deed or be deemed to have executed it.

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X