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Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25975
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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, is that Joshua?

Customer Question

Hi, is that Joshua?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello there. Yes it is. How can I help?
Customer: replied 2 years ago.

Hi Joshua, you answered a question for me on the 21st March. Order id 15101938-370. I don’t know if you can find the question from that or in you want me to copy and paste?

Following on from that question, we acquired the site and have done some more work looking into the accounts and speaking to the former owner of both the land and the fish farm. (One and the same person) Although he is reluctant to put anything in writing, he has confirmed that he never had a lease and there are no rent payments shown in the accounts. Furthermore he took a loan out on the full site 2 years after the lease is claimed to have begun and states categorically that he personally owns all the land and buildings and there is no lease on any part of the land or building and a mortgage was granted on this basis.

As such we believe that he had a tenancy at Will.

The liquidators are now threatening to “make the necessary applications to the Court with regard to your possession of the property in contravention of Section 130 of the Insolvency Act 1986 in order for the Liquidator to carry out his statutory duties in realising the company’s assets.”

We believe that if there was only a tenancy at Will then this would not stand, it is only correct if they had a lease.

Is this correct?

Expert:  Joshua replied 2 years ago.
Thanks. I will look at the old question - I can access it - and refresh my memoory of the facts if that is ok... I will be a few minutes.
Customer: replied 2 years ago.

Thats great, thanks

Expert:  Joshua replied 2 years ago.
Thank you for your patience. Congratulations (I hope) on the acquisition of the land. For the avoidance of doubt do I understand correctly that you purchased from the trustee in bankruptcy of the individual rather than the receivers of his ltd company?
Customer: replied 2 years ago.

Yes thats right

Expert:  Joshua replied 2 years ago.
Thank you. Based on what you say there is will no tenancy at will in these circumstances. The general rule is that, to take effect in law a lease must be by way of deed. From what you say it seems clear there was no written document let alone deed. Therefore the administrators of the company must fall back on the exception to this general rule. The exception is that a lease does not have to be by deed and it need not be in writing if it meets all of the following criteria: This is by virtue os sections 52-54 Law of Property Act 1925. The criteria they must show to rely on this exception are:The lease takes effect in possession. (Possession includes physical occupation and receipt of rents and profits). From what you say there is at the very least a questionmark as to whether the company took possession;The lease is granted for a term not exceeding three years from the date of grant ignoring any right to extend. And finally:The lease is granted at the best rent reasonably obtainable at the time. From what you say no rent was paid.Accordingly I cannot see that the administrators can establish any tenancy at all; certainly not a lease and probably not a tenancy at will unless they can produce such evidence to satisfy the above criteria. If that is the case then the tenancy cannot have been unlawfully ended. The administrators may therefore be invited to produce evidence in support of the above and show the basis on which they contend a tenancy exists referring them to the above sections of the LPA 1925. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me.
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Customer: replied 2 years ago.

That seems quite clear. However, the liquidator began a winding up order of the company in 2010, the morgagees repossessed the land and property in its entirety in 2013 allegedly in breech of the Insolvency Act 1986 Sect 130. The 2 parties have been at a stalemate ever since as neither will budge from their stance. How do i bring it to a head? Is there a notice i can serve (I have the keys and possession, but have been advised not to remove any assets - although there is no value remaining.) i will give access to remove anything they want!

Expert:  Joshua replied 2 years ago.
Mortgagees repossessing the land. To whom was a mortage granted - apologies if you have previously confirmed this. Was a mortgage granted to the company or a mortgage granted to the individual?
Customer: replied 2 years ago.

Mortgage was granted to the individual, secured on his home, the land the fish farm was built on and the commercial unit used by the fish farm.

Expert:  Joshua replied 2 years ago.
Thanks. If the mortgage was granted to the individual then it comes back to the same issue for the administrators of his company. The mortgage lender repossessed the land owned by the individual. The company administrators must prove the company had a lease or tenancy of the land in order to show that the companys rights were breached. If they cannot show a tenancy then there are no rights to breach and therefore no complaint in respet of the repossession under s130 Insolvency Act protection.In order to bring the matter to a conclusion, you could consider making an application to the court for a declaration that the company has no tenancy of the land. You would want to retain a commercial litigation solicitor to make such an application for you because it is possible the administrators of the company may retain representation and you would then be at a disadvantage. You can make such an application using a part 8 claim form and ask that the court declares that the Limited company has no tenancy in your land on the above grounds discussed above. If you are are successful in obtaining such a declaration then subject to the company administrators appealing the decision, you can proceed free of any further claims from the company administrators. http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=424 Does the above answer all your questions or is there anything I can clarify or help you with any further?
Customer: replied 2 years ago.

That is great, thank you for you help once again.

I will leave you positive feedback on your excellent service.

Wish me luck!!

Expert:  Joshua replied 2 years ago.
Many thanks. If you have time, please let me know how things progress.
Customer: replied 2 years ago.

Will do Laughing

Expert:  Joshua replied 2 years ago.
Best wishes