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jrfurank
05-12-2011, 17:18 PM
Hello

I rent a house from a friend.

The house has a flat in the attic with it's own entrance via an external staircase.

The agreement with my frend is that I may sublet the flat.

We are just drafting an AST with her solicitor but he says.........

I am with this email taking my clients instructions – however, the reason why there is a total prohibition on subletting is because my client must be able if necessary to evict all occupiers, including subtenants who will otherwise obtain tenants rights, which will prevent my client from evicting them should a qualified right to sublet be inserted in the AST.

If during the course of your tenant, you wished to terminate, then you should be able to approach my client to consider terminating your tenancy and granting another AST to an alternative tenant.

My client would be ill advised to allow a subletting clause to be inserted in the AST.

Is there any form of clause that could be part of the AST that would allow me to sublet and my landlord's solicitor to be satisfied that his client is protected?

Whilst posting - are there any other issues to be aware of by going down this route?

Thanks in advance for your help

theartfullodger
05-12-2011, 17:46 PM
You state you have agreement to sublet - is that in writing???

The letting would be an odd one - use this tenancy checker
http://m.england.shelter.org.uk/get_advice/downloads_and_tools/tenancy_checker


And you'll see if you answer as "your Tenant " - not as subtenant but as..I live in the same building as my landlord but we do not share any living space




Result

You are an occupier with basic protection

You are likely to be an occupier with basic protection. This means that you have few rights, which may make it difficult for you to enforce any other tenancy rights, such as getting repairs done. However, your landlord has to follow the correct procedure if they want to evict you.


Note this may not be (common usage "cannot be"..) an AST anyway - see Schedule 1 of HA 1988..
http://www.legislation.gov.uk/ukpga/1988/50/schedule/1
(which lists " Tenancies Which Cannot be Assured Tenancies " )



Resident landlords

10

(1)A tenancy in respect of which the following conditions are fulfilled—
(a)that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and
(b)that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—
(i)in the case mentioned in paragraph (a) above, also forms part of the flat; or
(ii)in any other case, also forms part of the building; and

mariner
05-12-2011, 17:55 PM
Sounds like solic is doing his job and advising an inexperienced newbie LL.

jrfurank
05-12-2011, 21:36 PM
Thanks for your quick response but I am still a tenant without a clause.

The flat is a separate entity with its own entrance. It has its own electrical supply and Council Tax is charged separately from the house.

It is like a maisonette and a flat in a converted building. It is not a private set of rooms within the house.

I can get the permission in writing because the managing landlord is my friend. however, the joint landlord is her brother who is capable of odd mood swings. The intention is to purchase the building in two years time under an option that is provided for in the agreement.

The problem is her solicitor cannot come up with a clause that allows me to sublet the flat. In fact the AST agreement has a clause disallowing sub-letting.

I dare not sub-let without agreement because if something should happen to my friend, the brother will cancel the option due to breach of contract.

I have managed to vary any other restrictive clauses by appending

without the prior written consent of the Landlord (such consent not to be unreasonably withheld)

and to avoid kicking the doped rottweiler in the groanads I have qualified the consent per

Any reference to the giving of consent by the Landlord requires the consent to be given in writing, signed by either of the Landlords.

but the solicitor is not moving on varying the sublet clause which stands as

ASSIGNMENT OR SUBLETTING

The Tenant shall not assign, sublet, part with or share possession or occupation of the Property or any part of the Property.

per his response that I copied at the launch of this thread.

If there isn't a fix for this that anyone is aware of, and, given the restrictive clause, if my friend landlord were to grant me consent to sublet in a side letter dated after the date of the agreement, even though consent is not provided for in the contract, would the less reasonable landlord be prevented from seeking repudiation on grounds of breach?

mariner
06-12-2011, 00:27 AM
As flat is seperate 'entity', I don't thing your Lease would allow you to sub-let flat. Why would either LL let you sub-let a 'seperate' property and derive the rent when they can let it?

ram
06-12-2011, 01:32 AM
As flat is seperate 'entity', I don't thing your Lease would allow you to sub-let flat. Why would either LL let you sub-let a 'seperate' property and derive the rent when they can let it?

Exactly.

So does jrfurank have use of the attic flat, can sleep in there, come and
go as he pleases, has keys to enter any time, and can store all his belongings
in there ? and does his AST say his rent includes the attic flat, as if it does,
them jrfurank has to pay council tax.

If he is allowed to sublet it and keep the money for himself, then he is in
"effect" renting the attic flat as part of the deal already, and may be charged
back dated council tax.

If jrfurank does not have access as above, then he cannot sublet it, as it is
not his to sublet.

If he does sublet, ( if allowed to, but probably not ) then he is responsible,
as a Landlord to repair and maintain the attic flat, and if he does not, the
tenant can take mr jrfurank Landlord to court.

Me thinks the owners just cant be "arsed" to advertise it, and want jrfurank
to do all the work, then come to him in 6 months time and say,
We want the last 6 months rent you got from the attic flat.

Shy away from any dealing with trying to rent out the attic flat, as it may
rebound on you, and your friends no longer are your friends --
Yes it happens.

If you dont have FULL access to the attic flat as described, then it is not yours to sublet.

R.a.M.

theartfullodger
06-12-2011, 09:04 AM
Thanks for your quick response but I am still a tenant without a clause.

The flat is a separate entity with its own entrance. It has its own electrical supply and Council Tax is charged separately from the house.

It is like a maisonette and a flat in a converted building. It is not a private set of rooms within the house.

..........

.........

Yes,thank you, clear, what I understood & expected originally.. Yes, separate entrance, separate Council Tax, own leccy supply.... Unless the building was originally constructed as 2 separate dwellings [like a purpose-built block-of-flats] and never converted from one dwelling it cannot be an AST. Suggest a re-read Schedule 1 and hopefully that should become apparent.

This distinction is not understood well by many landlords, many agents and a lot of solicitors. Appreciate this may not be what you want to hear.

jrfurank
06-12-2011, 09:58 AM
As flat is seperate 'entity', I don't thing your Lease would allow you to sub-let flat. Why would either LL let you sub-let a 'seperate' property and derive the rent when they can let it?

I am renting the building with an option to purchase. The flat had a previous tenant but I took over the whole building. The flat needs a lot of work doing to it (as does the house) that the landlord does not want to do.

I can either reincorporate the flat into the building by removing the external staircase and reopening the internal one or I can refurbish the flat and rent it out.

The circumstances remain that I have the permission from both landlords to sublet the flat - the problem is that I dont trust one of them if I sublet without legal agreement or consent to do so.

jrfurank
06-12-2011, 10:08 AM
Exactly.

So does jrfurank have use of the attic flat, can sleep in there, come and
go as he pleases, has keys to enter any time, and can store all his belongings
in there ? and does his AST say his rent includes the attic flat, as if it does,
them jrfurank has to pay council tax.

If he is allowed to sublet it and keep the money for himself, then he is in
"effect" renting the attic flat as part of the deal already, and may be charged
back dated council tax.

If jrfurank does not have access as above, then he cannot sublet it, as it is
not his to sublet.



I have the keys, full unadulterated access and the joyous reponsibility for Counil Tax. I would be responsible for repairs and maintenance to the flat.

I have the permission of the Landlord to sublet but currently prevented by the form of agreement that is in final draft form from their solicitor.

I am grateful to you all but what I was hoping for was a contractual remedy to the subletting rather than having to prove that I otherwise am able to do so.

jrfurank
06-12-2011, 10:21 AM
Yes,thank you, clear, what I understood & expected originally.. Yes, separate entrance, separate Council Tax, own leccy supply.... Unless the building was originally constructed as 2 separate dwellings [like a purpose-built block-of-flats] and never converted from one dwelling it cannot be an AST. Suggest a re-read Schedule 1 and hopefully that should become apparent.

This distinction is not understood well by many landlords, many agents and a lot of solicitors. Appreciate this may not be what you want to hear.

Thanks

Are you saying my contract for the whole cannot be an AST or the sublet? The draft AST provides me with the whole building.

I accept that I would not be able to grant a sub-tenant an AST and if not, would you happen to know of a link to the sort of agreement that I would be allowed to give them.

However, the actual issue of subletting will only arise if I decide to refurbish the flat as the separate entity rather than reincorporate into the house and have the house revalued for Council Tax. I want to address this before signing as I am still not certain which way to go. If it is impossible to deal with legally, that in itself will force my hand. I would prefer to keep my option as I do not have need for the space of the attic flat for the near future.

Clearly the letting status will change in the likely event that i exercise my option to purchase but we do not need to deal with that now.

The immediate problem is that I would like the AST that I am about to sign to allow me to sublet whilst keeping the solicitor kool and the gang about the protection afforded to his clients. If it is not possible to address both, and the non-sublet clause remains (see earlier post), if I have the side letter of consent from the constant and amiable landlord dated after the date of the agreement, would that prevent the unpredictable landlord from suing for a breach?

ram
06-12-2011, 10:32 AM
I am grateful to you all but what I was hoping for was a contractual remedy to the subletting rather than having to prove that I otherwise am able to do so.

Hope you appreciate, that before legal answers can be given, or any advice
given, the full facts must be known.
Your case is different from the normal questions, of I rent a flat, can i go away
and while away, can I sublet it.
Answer is usualy no, as A.S.T's have clause to prevent subletting.

The solicitor says he is protecting his client, so best to talk to "his clent"
the landlord, and say your solicitor is preventing me from renting out
the flat, please sort out this problem.

I cannot argue against a solicitor and your landlord, as that is where the
problem lies.
( Wrote this before seeing your above reply, and maybe others can advise )


R.a.M.

jrfurank
06-12-2011, 11:08 AM
Thank you everyone for all your help.

I have just heard back from the Landlord's solicitor with the following amended clause...

6. ASSIGNMENT OR SUBLETTING

6.1 The Tenant shall not assign, part with or share possession or occupation of the Property or any part of the Property.

6.2 The Tenant shall not without the prior written consent of the Landlord sublet the Property or any part of the Property.

If I do decide to sublet at a later date, I will check with you for suggestions of links for the form of agreement if as you say, I am unable to provide a subtenant with an AST.

Thanks again

J