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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 own a property on which my late fathers wife was given

Resolved Question:

We own a property on which my late father's wife was given a lease for a peppercorn rent when he died 23 years ago. She has now moved out at very short notice on March 23rd 2014 without any contact details leaving the move to friends who are acting on her behalf but they have made no contact for almost a week and still hold the keys to the property despite our request for them to be handed over and we are very concerned about security. The peppercorn rent is paid yearly on the 30th April so do we have to wait until then before we can take back the property or are we able to take measures to secure it? We are quite happy to make arrangements for access should she require anything but feel a time scale should be given for this. We just want to know what our legal standing is on this matter and how we should proceed.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 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 :

Could you kindly confirm the length of term of the lease please? Is the term contingent upon her living at the property or any other condition?

Customer:

It states 90 years (subject to the provision for determination hereinafter contained). It does not say anything about the survivor except death when notice could be given to any personal representatives of the survivor of the tenants. The tenant was to be responsible in keeping the demised premises in tenantable repair throughout the term and in such repair to yield up the same at the determination of the term, which she has not done. She has moved out.

Customer:

Is this just a temporary step out? I also note that the tenant is not to assign underlet part with or share possession of the demised premises.

Joshua :

Thanks. Sorry one of my colleagues locked the thread. Just reviewing the above...

Joshua :

Thank you so from what I understand you say, the lease provides that notice may be given by the landlord to determine the lease after your fathers wife's death. Is that correct?

Customer:

Yes but she has decided to move into a smaller place and has not been in contact and has left the house unprotected and in quite a mess

Joshua :

Thank you. Unless the lease makes the lease conditional upon her living there then her lease will survive her moving out and the landlord (which I presume is you) has no right to determine the lease and retake the property. Your fathers wife would need to surrender the lease to you in order for title to revert to you or you would need to wait until she passed away before you can determine the lease and regain control of the property. She may decide not to do so however there are a number of reasons why she may be persuaded to...

Joshua :

The reason she may be persuaded to give up the lease is because the lease will likely require her to maintain the property and pay outgoings and possibly to pay for insurance for the same. You will find her obligations contained within the lease but such obligations such as the above are typical. She may be reluctant to pay for such costs if she is no longer living there. If you insist that she attends to her maintenance obligations under the lease this will cost her money and she may prefer to give it up. If she refuses to honour her obligations you can apply for forfeiture of the lease by serving a s146 notice on her though hopefully this would not be required.

Joshua :

There is a potentail caveat to the above. If the lease does not contain a condition prohibiting subletting then she may decide to rent out the property. If she did so this may solve the above issue of expenses for her. Again check the lease to see if there is a prohibition against subletting. Hopefully there will be and this will not be an option for her.

Joshua :

If she is willing to surrender her tenancy either voluntarily or with some arm twisting using the above techniques then she will need to sign a Deed of Surrender in order to formally end the lease.

Joshua :

A Deed of Surrender can be prepared by a solicitor for a relatively modest sum normally of £2-300 VAT. Once this is signed the lease is surrendered and her obligations under the same are complete. If the lease is registered at the Land Registry then the Deed of Surrender will also need to be registered at the Land Registry to update the title.

Customer:

There is a clause that states she is not to assign underlet part with or share possess of the demised premises. There is a lot of maintenance work required to bring it back to a tenantable condition with a condition in the lease that states she is to keep the demised premises and any fixtures in tenantable repair throughout the term and in such repair to yield up the same at the determination of the term.

Joshua :

Great the clause you refer to would appear to prohibit sub letting so this is not open to her.

Joshua :

Based on what you say you may consider serving a notice on her in respect of maintenance obligations required under the lease requiring her to attend to her obligations failing which you will as landlord obtain quotes for the work and look to her for the cost of the same. You may or may not go on to say that you will forgive some or all of the costs of the works required on condition of her surrender of the lease as we have discussed above. Logically one would assume that she would wish to surrender the lease in order to reduce her financial committment to the property now and in the future.

Customer:

The house has an extension in which we live so we are responsible for insuring the whole building and therefore the lease is not registered at the Land registry. We would prefer to just have her surrender the property so would be prepared to forgive any costs as we feel this would be of more benefit to us just to be able to reclaim our property. Do we now go to a solicitor to request a letter is sent to her. She has not given us any contact details but realise she has had her mail re-directed or would the solicitor be able to trace her?

Joshua :

Understood. On that basis if you feel there may be any reticence on her part in surrendering the tenancy the best approach may be to nevertheless prepare a schedule of all of the repairs that are required and ask that she attends to the same within 28 days. However you could write to her with a separate letter headed "WITHOUT PREJUDICE" stating that as a gesture of goodwill you will forgive her liabilities under the lease in consideration for an immediate surrender of the lease.

Joshua :

This approach is likley to encourage her to cooperate - obviously you may prefer a softer approach depending upon your relationship with her.

Joshua :

Once you have agreement in principle from her you can ask a local solicitor to prepare a Deed of Surrender for her to sign to formally end the lease as above.

Customer:

IS the best approach for us to write personally as the "friend" who has taken control is not at all approachable not that we have an address for him. Maybe this would be less of a financial burden but tend feel that a solicitors letter would bring about quicker action to get the matter resolved once and for all - do you have any advice relating to this? Should we allow a timescale before we proceed or are we able to do this straight away. This is causing us a lot of problems as we were only informed of her move two weeks prior to her leaving the premises. Until this time we thought we had a good relationship with her as she was accepted into the family when she married my father and since his death we have helped her in many ways, such as helping with maintenance of the property at no cost.

Joshua :

Sorry I am a little confused by this: "...for us to write personally as the "friend" who has taken control is not at all approachable not that we have an address for him". Who is him please?

Customer:

Sorry about that. Are you suggesting we write directly to the tenant, ie my late father's wife, or should we go to a solicitor straight away. She is 84 years old and this "friend" has taken control of her matters which means he is likely to respond and we do not wish that to happen.

Joshua :

Oh I see thank you.

Joshua :

It is very much a question for you. There is no reason you cannot go to see her yourself, write to her yourself sternly or in a friendly manner as above or get a solicitor to do so. A solicitor will obviously increases costs if involved at an early stage so this may be a reason not to do so. However if you are content to pay such costs for the benefit of having a solicitor involved at an early stage this may be a good option for you.

Joshua :

There is no right or wrong way of approaching this. However based on what you say you would appear to have a strong hand in that she has not insignificant financial obligations towards the property and accordingly you should be able to use this as leverage for what you want with relative ease I would hope.

Customer:

Thank you. As she moved out on March 23rd how long should we give before we contact her. It states in the lease that we have to give 48 hours notice for right of entry to inspect the premises. Should we write to her to declare our intention and within it state that we will waive her obligation to any costs for repairs if she surrenders the lease? We ask this because we would just like to get it all sorted out so that we can move forward.

Joshua :

On the basis she is in breach of one or more maintenance obligations in the lease you could contact her straightaway in relation to the same. If you tell her you may be prepared to forgive the obligations in consideration of a surrender you may wish to do this separately under cover of a letter headed "Withoug Prejudice". This prevents her legally relying on the offer. If I were in your position I would contact her without delay as you say

Joshua :

Is there anything else I can help you with?

Customer:

Thanks very much for your help. Just one question it says save and exit but where will I find the details of this chat after I have exited? Is it e-mailed to me?

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. This will also save the thread to your account and you can access it at any time from your customer homepage and/or a link in your email. If there is anything else I can help with please reply back to me though

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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