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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9318
Experience:  I have been practising for 30 years.
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I was just about to sell my leasehold Tearoom ,I have

Customer Question

Hello I was just about to sell my leasehold Tearoom ,I have a renewable expired lease, the buyer and I had agreed terms and were about to sign but my landlord who was old got ill and died in hospital, It now seems that his estate will have inheritance tax etc and is not that straight forward and could take up to a year! The buyer and I are keen to find a solution, we have solicitors talking to each other trying to find a solution, Isn't there some exception in probate where urgent cases can be processed ? Any ideas before I loose my buyer.It will all be straight forward after probate but I can't wait that long .We understand that the parties dealing with it and the potential benefactors have no reason not to grant a new lease. Michelle .
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
Will the trustees of the estate agree to the new lease at this current stage in time?
Customer: replied 1 year ago.
I wasn't aware that they could but at the moment there is no apparent objection, heads of terms had been agreed before he died ,but he was unable to sign.
Expert:  F E Smith replied 1 year ago.
How long was the old lease?
Customer: replied 1 year ago.
23 years a new one was to be 15 with 5 year clauses, Its about whether I can transfere my right to renew to the buyer and him have the same security of tenure I have ,until probate is granted, there seems to be some discussion as to his security and him having to take a short term less secure lease in the interim period.
Customer: replied 1 year ago.
I'm sorry but I have to go out till about 5.30 can we talk later if posts. I will check this page when I get back ,I have animals to tend to.
Expert:  F E Smith replied 1 year ago.
Depending on which Registry probate has been applied for depends on the timescale. It is usually between 6 and 10 weeks from application. There is no way of queue jumping and it’s not unusual for the whole process to take in excess of 12 months by the time all the assets of been accounted for.There is a statutory right to renew this lease if you are aware. If the new lease was less than 7 years, then there is no need to register at the land Registry. However if it is 7 years or longer, then it must be registered the land registry and is the only people who are able to grant the lease are the Executors (which they are able to do) the Land Registry would not accept the application unless there was grant of probate.A buyer of your business would be ill-advised to complete unless there was an agreement for lease whereby they were guaranteed that the lease would be renewed. There are circumstances under which it will not necessarily be renewed.There is a way round this. The executors sign an agreement for lease. It is a very common document. It binds the new tenant to take the lease and it binds the executors to grant one.They can do that now, without probate. It does not need registering anywhere. At the same time, they grant a licence to the new tenant for the tenant to stay in the property paying monthly rent until such time as probate is granted when they would have to take the new lease. It would be binding on both parties. That would solve the problem.Whether the executors are willing to do it and whether the buyer is willing to do that, is entirely up to them but it is perfectly legal, above board and not at all unusual.Can I clarify anything for you?Please rate my service positively. It’s an important part of the process so that experts get paid for their time. Thank you.Best wishesFES
Customer: replied 1 year ago.
Thank you for you uplifting answer can I contact you with any other relevant questions to clarify matters.
Expert:  F E Smith replied 1 year ago.
It was a pleasure to help you. You do now have a way forward.Please don’t forget to rate the service positive and I can answer any further questions you may have.
F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Mr Smith, It seems there is some confusion with the legality of a document signed by the Executors before probate and whether it would be legally binding to support the buyer. How can they do that ? What would happen if another will was found and different executors were named ? If the new landlord would not grant a new lease to the buyer would it default to my renewable one or would I have to sign my right over when the buyer took the new licence , can the executors grant a new licence also before probate ,that seems to be the sticking point ,
Expert:  F E Smith replied 1 year ago.
The Landlord can only refuse to renew the lease if the landlord intends to occupy the premises himself or intends to redevelop the premises and cannot do that with the tenant in situ.However, there has to be “a firm and settled intention”to do so which means that in effect landlord would have to produce plans and planning permission and quotations and suchlike to prove that there was a firm and settled intention. That, the landlord has no option but to grant a new lease under the same terms as the old lease albeit at the new market rent.The Executors are also called Personal Representatives (of the deceased landlord) and therefore, for the purposes of the new lease, it doesn’t matter whether it is this set of executors or some other executors from a new will.The only problem with Executors executing a lease is the matter of registering the lease at the Land Registry if it is over 7 years. A licence does not need registering. The Executors are under a duty to act in the best interest of the beneficiaries and if there is attendant willing and able to pay rent on the property, that would extend to granting the licence pending the grant of probate to allow a long lease which would be registrable at the land Registry.If another and later will was found which appointed different Executors, these executors would have to step down but any new executors are still under the same duty and it would be remiss of them to revoke a licence and deprive beneficiaries of any income.It is likely that if solicitors are acting for the buyer,they are going to insist that this is done by way of lease and not a licence so as to provide some certainty. They will not be bothered in all probability about the legalities of it, they will simply want it in black and white in the form of a lease without suggesting any kind of work around.There is another way that could be done and that is to make the sale conditional upon the granting of a new lease but that does mean that the sale price be held by a solicitor pending the granting of a new lease. At least you wouldn’t lose the buyer but it does mean that if the lease was not granted for any reason, you would get no money the business would come back to you and the buyer would walk away. They could well have wrecked the business in the interim or of course improved it and that is a risk that both of you would run.Best wishesFES
Customer: replied 1 year ago.
Hello FE Smith, I'm back, Theres a lot of time wasting down here in Cornwall, We are still trying to get my landlords solicitors to agree to an agreement for lease document and a licence for my potential buyer, The Funeral was last Friday and meeting of trustees was Tuesday the beneficiary is keen to conclude this matter but all the solicitors seem to think its more complicated, would you mind if next week I can ask you more if I need to ?I need to move this on asap
I have a buyer , I really need to sell my tearoom for financial and health reasons, but the buyer is getting fed up with waiting and I feel my drop out,The landlords solicitors are saying the estate is complicated ,but that shouldnt affect us ? I have no questions a present except that I may need to continue with" this" question after Ive seen my solicitor next Tuesday, I may need to clarify things after that ok