Leasehold Wording for Subletting

**leaseholdanswers** · 30-01-2013 16:41 PM

But the document you quote says " the other flat" have you got hold of a head lease for the whole building? What is the demise set out in the lease?

I was going to PM and say send me the lease, all personal information deleted, to have a look, but your profile has "turned off private messages", happy to try.

**siva** · 30-01-2013 16:41 PM

Originally Posted by Tom Roughan

Basically, if permission to sublet is required can the freeholder withhold permission until rectification is undertaken, or withhold it entirely if he feels justified? That's why I needed clarification on the original sublet wording.

There is nothing to suggest that permission is required to be allowed to sublet.

Even if there is an absolute prohibition against subletting the LL can be deemed to have waived this prohibition. For example, the prohibition might be deemed to be waived if the LL has repeatedly ignored the breaking of it.

Unfortunately it's not as simple as just understanding the lease.

**Tom Roughan** · 30-01-2013 17:23 PM

PM on now.
1 Freehold - me
2 Leaseholds - i. Upstairs Flat (where I live)
ii. Downstairs Flat + AST (now finished but seeking another)

No head lease.

**Tom Roughan** · 30-01-2013 17:26 PM

Thanks Siva

I fear I may fall into that category.

**Tom Roughan** · 30-01-2013 20:05 PM

Had another thought to put to you learned ones.

Sorry to return to this, and we must get a formal legal opinion, but so far it sounds like there is a precedent case, and my argument would be that one could interpret the document as containing an absolute prohibition on subletting part, but that subletting the whole can be 'permitted'....presumably by the Freeholder (see earlier post with exact wording, would welcome clarification on this).

Permission was not sought by the LH, but we the FH felt it was unreasonable to interefere with the natural course of the AST tenancy at that time, and we have endured patiently problems over that time. Being as best as we can to be reasonable, we do not per se wish to withhold permission for the Leasholder to sublet, but now that their flat is unoccupied, we wish to address some concerns we have had (esp regarding access for maintanence) and seek to be satisfied of certain conditions before allowing future tenancies.

We have good reason for these conditions, they are reasonable. However if the Leaseholder does not accept these conditions, or they are proving to be too difficult generally, it would not be unjustified to argue that we do not want and are not required to accept the added baggage of a difficult AST tenant who is indifferent to the obligations of the FH to maintain, monitor (subsidence) and repair on top of a difficult LH...

I've very much appreciated the input from both of you today.

Thoughts?

**leaseholdanswers** · 30-01-2013 21:20 PM

I made the point earlier in my usual obscure manner. I'll be blunt, you are over complicating it.

The lease needs to be read as on balance we have seen a few lines an its likely not understood. Thats not a criticism reading leases is not something for the experienced and untrained.

leasehold have their own logic. See my PM the sooner it arrives the sooner I can comment.

**siva** · 31-01-2013 08:04 AM

You are best advised to send LHA a copy of your lease. You may have missed something and there may be better ways of dealing with the problem(s) caused by the other leaseholder and their tenants.

Originally Posted by Tom Roughan

Sorry to return to this, and we must get a formal legal opinion, but so far it sounds like there is a precedent case, and my argument would be that one could interpret the document as containing an absolute prohibition on subletting part, but that subletting the whole can be 'permitted'....presumably by the Freeholder (see earlier post with exact wording, would welcome clarification on this).

If you are relying on the Field v Barkworth case then what you would take from that is that it is impossible to sublet the whole of the flat without also subletting part, which you would claim is not allowed. However in your case the tenant might argue that there are significant differences to the Field v Barkworth case and subletting of the whole must be allowed otherwise why would underletting require registration? They could also claim that, anyway the covenant has been waived on grounds of estoppel by acquiescence.

When a lease stipulates that a leaseholder can sublet with the LL's permission, permission cannot be withheld unreasonably. Even if this was the case with your lease (which it doesn't look like) it is unlikely you could use the behaviour of a previous tenant as a reason to withhold permission.

The biggest weapon in your armoury is the threat of forfeiture and your ability to pass legal costs on to the leaseholder (probably - you will need to check your lease). If the other leaseholder is in breach of any covenant of the lease you may be able to use this as leverage to get them to do what you want. If a new tenant causes a nuisance, this will most likely (again you need to check the lease) put the other leaseholder in breach of their lease and you could tell them to evict their tenant.

Or, even if you're not 100% confident of the fact, you could just tell them that the lease prohibits subletting. Threaten forfeiture if they sublet, but as LL (and only other leaseholder) you may temporarily be willing to waive that restriction on the following conditions...