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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Hi, The lease agreement for a property we are about to purchase

Resolved Question:

Hi,
The lease agreement for a property we are about to purchase has the following clause (see foot of email), which I read to mean that the landlord can take repossession of the property, with no compensation to us, immediately that a ground rent payment is 2 weeks overdue - with no obligation on the landlord to first contact us to find out why it is overdue (or even that we are aware it is overdue - maybe we are out of the country at the time).
The ground rent is a small amount so it is not a matter of not being able to pay, it is a matter of reasonableness and aggressiveness of the clause, and the potential risk of loosing everything paid for the lease due to what could just be absent mindedness or administrative error.
I have raised the issue and apparently it is 'normal' and would not be acted upon - however the fact is it is in a document we are supposed to sign, and technically *could* be acted upon. I would appreciate your advice on whether my understanding is correct, whether this is normal, considered reasonable, and whether it is reasonable of us to request the wording is changed. Thanks!
The clause follows:
26.1 If and whenever during the Term:
26.1.1 the Rents under this lease are outstanding for 14 days after becoming due whether formally demanded or not;
26.1.2 there is a breach by the Tenant of any covenant or other term of this lease or of any document supplemental to this lease;
The Landlord may re-enter the Premises at any time (and even if any previous right of re-entry has been waived) and the Term shall absolutely cease but without prejudice to any rights or remedies that may have accured to the Landlord or the Manager against the Tenant in respect of any breach of covenant or other term of this lease (including the breach in respect of which the re-entry is made).
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

You are correct. However you could then apply to the Court for relief.

Alex Watts :

This is where the Court considers the matter and sees whether the tenant can pay off the arrears over a reasonable period.

Alex Watts :

If this is for a private dwelling then the Landlord has to apply to the Court for an order for possession.

Alex Watts :

If its a private dwelling then the Landlord can not simply re-enter.

Alex Watts :

A Landlord MUST get a Court order which you would have an opportunity to defend.

Alex Watts :

Usually what happens is that a Landlord if the rent is late, will write to you and demand it.

Alex Watts :

If you do not pay and you have a mortgage the Landlord will contact the lender.

Alex Watts :

Usually the debt is paid and the lender adds the debt to your mortgage.

Alex Watts :

But as a last step the landlord can seek possession but MUST have a court order as this is a private dwelling

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Thank you for your answer. So the clause could not be enforced without going through due court process anyway. Is it then the case that the court would use some common sense if there was a genuine reason for missing a payment by 2 weeks and in so doing rule that the lease could not be removed provided we stump up the arrears right away - or would the court be obliged to interpret the lease agreement to the letter exactly as signed (so we would be no better off, but have incurred court fees on top of loosing the lease)? Does that make any difference or is it still treated as a private dwelling?

You probably think I’m being over paranoid but it is a big investment to make when such a draconian clause exists!

Customer:

Sorry - the last sentence of the first paragraph should have said "Finally, yes it is a private dwelling, but is might be let to a third party (which is permitted by the lease), does that make any difference..."

Alex Watts :

The clause can not be enforced WITHOUT a Court order.

Alex Watts :

If it a private dwelling even if sublet the answer is the same.

Alex Watts :

Does this help?

Customer:

Almost - I understand that it cannot be enforced without the order - but if a court order is sought is the court just going to say "well you signed it and have to stick to it", or will they be able to prevent the landlord from doing something which would seem unfair given mitigating circumstances. Hopefully I'm making myself clear - its a matter of whether the court interprets the lease exactly as written or uses common sense to say it can't be enforced if there is a genuine reason for a payment being missed.

Alex Watts :

No it does not make sense.

Alex Watts :

The Landlord will apply for possession

Alex Watts :

This will detail outstanding sums due

Alex Watts :

If you pay those sums before the Court hearing there will be no order.

Alex Watts :

If the Court grants possession it can suspend it on terms, ie you pay £x a month or a week and the order cant be enforced as long as you stick to it

Alex Watts :

The Landlord then if you break it apply for a warrant.

Alex Watts :

You can then apply to suspend the warrant of eviction

Alex Watts :

Is that clear?

Customer:

Yes - thanks a lot!

Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience: Solicitor with 5+ years experience
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