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subjecttocontract
04-02-2010, 04:51 AM
I am a leaseholder renting out a flat and my freeholder requires me to obtain their permission to let the property. This involves them supplying a deed of covenant which I and the tenant sign to say we will comply with the terms of the lease.

I have now discovered that the deed of covenant for a tenancy that recently ended was incorrect.....it referred to a lease for a different property.

As the deed of covenant was invalid and therefore formal permission to let was never actually granted for my flat, do I have a case for asking for the £130 fee to be refunded ?

PaulF
04-02-2010, 08:58 AM
Why don't you just try and do that?

subjecttocontract
04-02-2010, 09:40 AM
I am intending to claim the fees back BUT fully expect them to refuse.

They do have a system for providing retrospective permission but of course this won't work for them in this case because the permission is dependant on the tenant signing the deed of covenant......that tenant is now gone.

I could claim the money thru the county court if necessary but just wanted the opinions/ thoughts of some of the regulars on this site.

Lawcruncher
04-02-2010, 10:05 AM
I think the way you need to look at it is this. Suppose a week after you let the landlord came back and said that the consent was invalid and he was going to sue for breach of covenant, would you have argued the consent was good and that the fact that it referred to the wrong property was no more than a clerical error? I suspect you would. In that case I do not think you can now argue that the consent was invalid - indeed if you do you are admitting you were in breach of covenant.

subjecttocontract
04-02-2010, 10:44 AM
Thanks for viewpoint.

If the freeholder did that part way through the term of the tenancy, then I would expect them to provide a new, correct, deed of covenant and the tenant & landlord would sign it, destroy the old incorrect deed and everything would be as required.

As I see it, I paid them a fee for permission. They made a mistake which resulted in that permission not being given. It was the freeholders error and therefore a refund is due.

If I employed a contractor to carry out work and they didn't do it I would be within my rights not to pay or to receive a refund.

Lawcruncher
04-02-2010, 11:30 AM
Let me put it this way:

You obtained consent.

Relying on the consent you sub-let.

By relying on the consent if it was indeed invalid you effectively validated it.

Now that the consent is "spent" it is not really reasonable to argue it was invalid.

It is a question of estoppel. You cannot argue something on Monday and rely on what you argue only to argue on Tuesday that you should not have argued what you argued on Monday because it then suits your convenience. To apply the principle to your case, you would have argued the consent was valid if the landlord had challenged it; you cannot now turn round and say it was invalid because you want a refund of costs.

So I do not think it is a case of you not getting what you wanted because you treated what you got as what you wanted.

subjecttocontract
04-02-2010, 11:50 AM
Thanks for you comments.

You obtained consent.
Relying on the consent you sub-let.

No. Its actually impossible to obtain the consent BEFORE sub letting. The process requires me to submit the completed AST with the application. So, the tenancy has already commenced when the application is submitted but the freeholder is aware of this.

By relying on the consent if it was indeed invalid you effectively validated it.

No. I just followed the steps that the freeholder required.....paying them £130in the process.

Now that the consent is "spent" it is not really reasonable to argue it was invalid.

Why not ? My £130 was the fee for obtaining consent. That consent wasn't granted.

So I do not think it is a case of you not getting what you wanted because you treated what you got as what you wanted.

Well, it wasn't actually what I wanted because the permission to let is imposed on me by the freeholder, therefore, its what they wanted. I was merely following the steps of the process as required of me. In exchange for the documents, the fee and the signatures they are required to provide a valid document.

It was never provided.

Lawcruncher
04-02-2010, 12:17 PM
Any procedure that requires you to apply for consent after a fait accompli is clearly a nonsense. In most cases there are two steps. Details may vary, but the standard procedure is that first you apply for consent providing the form of agreement you propose to use and consent is granted on the basis that the agreement will be in the form approved. Secondly, there is a requirement to give notice of the underletting and to provide a copy of the agreement.

Since you acquiesced in the nonsense and are now arguing that because the consent was retrospective and wrong you should not have to pay for it, the landlord's argument only has to be to say he was sorry the consent was wrong and to issue the correct consent. Since you had both agreed that the way to deal with the matter was by retrospective consent the fact that the tenancy in question has ended is of no relevance.

Whilst it is unlikely to change the position, what sort of error are we talking about? Was it just a case of a typo or clerical error?

subjecttocontract
04-02-2010, 14:02 PM
Any procedure that requires you to apply for consent after a fait accompli is clearly a nonsense.

I agree but I'm merely a leaseholder with no legal knowledge. The freeholders impose their rules , processes and procedures within the terms of the lease and mine is but to do & die (comply).

Since you acquiesced in the nonsense and are now arguing that because the consent was retrospective and wrong you should not have to pay for it, the landlord's argument only has to be to say he was sorry the consent was wrong and to issue the correct consent.

1. There was no retrospective consent......there was just no consent.
2. The freeholder cannot issue retrospective consent because it requires the tenants signature....the tenant has gone.
3. The freeholder can appologise but will not now be able to issue consent.

Since you had both agreed that the way to deal with the matter was by retrospective consent the fact that the tenancy in question has ended is of no relevance

Retrospective consent cannot be provided in this situation because one party to the agreement .....the tenant.....has already ended the tenancy agreement.

Whilst it is unlikely to change the position, what sort of error are we talking about? Was it just a case of a typo or clerical error?

The process hinges on a deed of covenant that is required to be signed by the tenant who states that s/he will " observe all of the covenants, obligations and conditions on the part of the Lessee contained in the lease xyz ". The lease referred to in the deed of covenant is NOT the lease for the property.

Lawcruncher
04-02-2010, 15:54 PM
I think that I slightly misread the situation here. I was concentrating on you saying that consent had never been given and not on the point that it was a deed of covenant that was wrong. Your first post sort of suggests that the consent and covenant were included in the same document. Was that the case? What exactly was executed and what did the/each document do?

I think we also need to know exactly how material the error was. What exactly are the mistakes that were made?

Finally, if you set out exactly the provisions of the lease relating to assignment and subletting we may be able to tell you what the landlord can insist on in future.

subjecttocontract
04-02-2010, 16:34 PM
The process to to obtain permission to let is....


Landlord completes an application form and submits to the freeholder together with a copy of the AST & a cheque for the fee.
Freeholder takes the documents and draws up 3 identical deeds of covenant which he sends to the landlord.
The landlord arranges for the tenant & himself to sign the deeds of covenant and then returns them to the freeholder.
The freeholder approves deeds of covenant, keeps X1 for himself and returns X2 of them to the landlord ....one for landlord and one for the tenant together with a separate formal letter granting permission to let.



The Deed of Covenant is signed by the tenant to say that they agree to observe all covenants, obligations and conditions contained in the lease.....and also signed by the landlord. The problem is that the lease referred to in the deed of covenant is not the lease for that property. Its someone elses lease as it contains different names and a different date to the copy of the lease I hold for the property.

Permission to let is a separate document in the form of a letter issued by the freeholder and is supplied subject to completion of the deed of covenant.

The mistakes on the deed of covenant are the wrong names as parties to the lease and the wrong date of the lease. Clearly the names and dates refer to another lease for another property.

Hope this helps.

ram
04-02-2010, 16:45 PM
As I see it, I paid them a fee for permission.


You paid a fee for them to spend their time and effort to look into previous dealings with you, if you had had previous tennants that were model sub tenants, or bad tenants, a fee to produce and post documents, a fee to cover time, phone calls, and postage.

i understand from your posts that you asked permission to sub-let, and a tenant WAS allowed to stay.

You paid a fee, and you were able to have a tenant.

So realy, you can't say, I paid the fee, the tenant was allowed to stay, now I want my money back on a technicality.

But I see your point, on the technicality, ( just read above, as I was typing ) but your tenant was allowed to stay !

R.a.M.

Lawcruncher
04-02-2010, 17:32 PM
Leaving to one side (as I think I have to) that it is an odd procedure that requires consent to applied for after the event and makes consent conditional on a deed of covenant being signed which as a matter of policy ought to be signed before consent is given, what we have here is (a) an absolute consent (it was given after the conditions imposed, however daft, had been complied with to the landlord's satisfaction) and (b) a deed of covenant with incorrect details in it. Whilst it is arguable that the deed of covenant is of no value, that does not affect the validity of the consent. Indeed, you are not prejudiced at all by the deed being ineffective. In any event, I think it might be difficult to persuade a court that the deed was of no effect.

Quite honestly I cannot see you getting very far with this in court. Apart from anything else, the judge would surely ask: "Why has it taken you this long to spot the error?"

subjecttocontract
04-02-2010, 17:43 PM
Quite honestly I cannot see you getting very far with this in court. Apart from anything else, the judge would surely ask: "Why has it taken you this long to spot the error?"

Thats easily answered.....The reason its just come to light is because I have just installed a new tenant with a new deed of covenant. The new deed of covenant differs in content from the old deed and thats what started me looking into why.

I think I'll try requesting a refund and if thats unsuccessfull I'll have some fun taking it through the county court.

Just noticed I've got another incorrect deed of covenant......makes me wonder how many others there are!

Lawcruncher
04-02-2010, 17:45 PM
Noted, but I still do not think this is worth pursuing. Maybe a letter or two, but not worth any more effort and certainly not worth incurring expense.