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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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we lease a hotel and have defaulted on the lease due to financial

Customer Question

we lease a hotel and have defaulted on the lease due to financial problems, we are paying £6000.00per month and have done for 18 months, due to an 80 bedroomed premier inn going up in our town in december, to date, our bookings have diminished and we have struggled to pay the lease and the bills... we paid the £6000.00 in december and january and owe £2000.00 from feb and now £ 1900.00 from march so in total £3900.00, we have appointed a solicitor who has now advised we have to pay £3712.00 buildings insurance and if we dont pay the £ 5612.00 in the next few hours, they will proceed with court eviction/possession of the building, we dont have an overdraft and cant ask anyone for money, so do you know if we go to court how long the eviction process is, as we live here with our family, we have not got any other source of income or home, this is our home, we spent all our savings on doing up the hotel as we wanted to buy it, and now as we have defaulted we are being evicted...we are after time to sort this... but cannot as we are not making enough money to pay them... how long do we have, our solictor, sent us an email today and said we have hours to sort out the money...what does that mean...
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

I am very sorry to hear of your present circumstances. May I ask if you have your lease agreement to hand please?

Joshua :

Do you have an option to purchase the hotel or was this just left informally with the landlord?

JACUSTOMER-34dqtzvj- :

hi Josh, no all documents are with solicitor, but he advisded us that we couldnt be evicted as we live here, so that would bide us some time and due to the amount owed we have clearly defaulted. we dont want to buy the hotel now, we are i a lease until July 2015 with an option to buy then, but as we have defaulted we have been advised they can make us leave... we have had numerous conversatioin and meetigs and advise the other local hotel were struggling too, since the opening of the premier inn and that the £6000.00 as well as other bills was just not manageable... we were also told that the £6000.00 included building insuance, and now they are demading 2 years of building insurance as they said the have demanded us to pay on numouers occasions and to date we have never been asked or seen an invoice for it, so with the arrears of £ 3900.00 (from feb and currently march) they also want £3712.00 for insurance and the solicitor has also demanded her costs of £1500.00 + vat for sending us a letter and we need to get the money to them in the next few hours.... or they will issue court proceedings... ?? we have no where else to go and when we get money in for guests staying we send it to them... so we are chiping away at thier costs, but all these additional costs have come of a shock to us and we just dont have the funds to do this...

Joshua :

Thanks. Do you live in a separate building to the hotel or within the hotel itself? Is your living area self contained?

Joshua :

Is your living area let on a separate lease or let under the same lease as the hotel?

JACUSTOMER-34dqtzvj- :

hi the flat is joined onto the hotel ? we pay council tax on the flat, and my son lives in one of the basement rooms ? and its all under the lease ?

Joshua :

Thank you. OK the good news is that on these facts because you also live there you will have protection under s2 of the Protection Against Eviction Act 1977 and the landlord cannot exercise his power of reentry contained in the lease whereby he simply enters and changes the locks. The landlord must go to court to obtain possession. This gives you some breathing space and the opportunity to apply for relief in court if necessary.

JACUSTOMER-34dqtzvj- :

do you have any idea how long this will take, and if when you say apply for releif in court if necessary, what does that mean /entail... ??

Joshua :

The landlord will need to apply to the court in order to obtain a forfeiture order. He must first serve you with something called a s146 notice which must give you 7 or more days to remedy the breach - the breach here will be unpaid rent. If you fail to do so he can apply to the court for an order to forfeit the lease.

Joshua :

The court will hold a hearing which will take anything from a few days to a month or more to convene depending upon court workload and you will have the oppostunity to attend.

Joshua :

The only way to guarantee that the lease will not be forfeited is to pay the rent owed at or before the hearing together with the landlords reasonable costs but if you cannot do this you can seek relief from forfeiture from the judge if you can show how you can swiftly pay the rent owed in relative short order and present evidence to support your claims.

Joshua :

Unfortuantely commercial leases are relatively brutal when it comes to unpaid rent - if it were not for the residential element the landlord could simply employ a certified bailiff to change the locks without a court order. There is far less protection than there is in residential tenancies and you will need to find a way to stablise your income sufficiently in order to cover the rent or there is in the long term regrettably little security of tenure available for you in your current circumstances. I appreciate improving the income is easier said than done

Joshua :

In terms of costs any costs claimed must be reasonable and you can require the landlords solicitor to justify any costs claimed with a timesheet of time spent. You can do this if necessary at the possession hearing referred to above

Joshua :

If you think you can afford to pay the rent shortly consider asking for a meeting with the landlord and discuss your affairs pointint out the difficulties the new hotel has created. If the landlord forfeits the lease he will no longer have a paying tenant and any new tenant will have just the same conditions to deal with. landlords do not like empty properties. They have to pay rates on them just the same and get no rent.

Joshua :

You may be able to work out some form of compromise particularly if you point this out - though most commercial landlords are aware of the above

Joshua :

Is there anything above I can clarify for you?

JACUSTOMER-34dqtzvj- :

hi sorry, checking someone in. so just reading through.

Joshua :

no problem.

JACUSTOMER-34dqtzvj- :

josh we owe in total |£3900.00 on rent for feb and march, but the costs have shot up due to the buildings insurance now being asked for....which we had never been asked for and told this wa part of the lease costs?? we have to date not received any invoice for buildings insurances... so will the judge give us time to pay for this ... if we can try and find the money for the arrears, but then we will still be the same in april agaiwe were £6000.00 in creidt as the landlord took 2 months up front when we moved in... and now this has come to light they are now answering for us to paybuildings insurance and solicitor costs..so they dont have to pay the £6000.00 is that correct.? otherwise they could have used the £6000.00 to offset the arrears of £3900.00 and we would h ave been in credit ??? surely the buildings insurance and solicitor costs should be a offset separately ??

Joshua :

Did a solicitor act for you as part of the lease negotiation? Were you told in writing or just verbally that the insurance costs were included? If you used a solicitor did you inform him about the insurance being included?

JACUSTOMER-34dqtzvj- :

hi josh

JACUSTOMER-34dqtzvj- :

ok in the lease it says we have to pay the building insurance, but the landlord said that the lease included the buildings insurance, and now is retracting that, she advised that was the lease was sohigh because she had to pay the building insurance... they used a compamy called towergate who they referred us to us and we did and and for our liability and contents etc, so as i said to them, if we had been advised we had topay buildings insurance, we would have run that alongside the insurance we had in place with towergate insurance and paid a monthly premium that we do, which would have been affordable and acheivable to do at that given time we put into place the insurance in august 2012- and pay every month, so that being the case we would have done that will the buildings if that was the case, and not now been hit with at £3700.00 bill to pay in the next few hours.... i just dont understand why this is happening, ???

Joshua :

Did you use a solicitor to assist you with the lease?

JACUSTOMER-34dqtzvj- :

no.. they did and told us as they wanted us in and trading not to use one as time was of the essence.... and that everything under a genlemans agreement would be that they also helped us with thotel and repair if anything went wrong... and everything went wrong and we have paid for everything but its now in thier lease.... so its our fault for not being represented and will never do this again without a solicitor

Joshua :

Thank you. Oh dear. Finally do ou know what the insurance clause states? Does it provide that the landlord shall insure and you shall pay the premium or does it provide that you must insure and pay the premium? Is a specific insurer specified in the lease?

Joshua :

I presume you have no evidence of what was told to you re insurance and so on but this was all verbal which the landlord denies?

JACUSTOMER-34dqtzvj- :

yes, and landlord denies saying this but has said the lease was so high at £6000.00 as this had to pay the business insurance, and on the lease it says we had to pay it, but no costs or anything... sorry... doesnt look good forus... we are just tryig to gage how we go forward, we have no other home to move into, we cannot go and rent a house as wehave no funds to do this, and finally we have a hotel full of our furntiure with no place to store any of it...i have to say goodbye as we have a really early start and i guess i need to be speaking to our solicitor first thing to see how he is going to represent us, or are we better off representing ourselves... ??

Joshua :

Thanks for the above. If you had evidence of what the landlord told you could rely on estoppel to prevent the landlord charging insurance costs to you.

Joshua :

If it is a question of your word against theirs then this is unlikely to be sufficient unless you have independent witnesses or other circumstantial evidence.

Joshua :

Notwithstanding the above if the lease provides that you are to pay the insurance then unfortunately this must be paid I regret.

Joshua :

However the most successful commercial landlords are interested in long term successful relationships with their tenants. Short term gains can be eclipsed swiftly by rent voids. Although the landlord appears to have the upper hand in so far as they managed to pursuade you to sign a lease which did not reflect your agreement, if the effect of this is to force you out of the hotel this may or may not be of benefit to the landlord if they then have an empty hotel whilst they seek a new tenant. Accordingly unless there is another agenda on the landlords part requesting a meeting with the landlord to explain your position and pointing out the above may be of benefit in the hope that you can reach an agreement to reduce the rent in light of both the misrepresentation regarding the rent and the new competion to enable you to continue the hotel as a going concern.

Joshua :

I hope the above is of some assistance and wish you the very best of luck in reaching a compromise with the landlord

Joshua :

Is there anything else I can help you with on the above?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

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