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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Our Ltd company bought a commercial premises in 2014 from St

Customer Question

Our Ltd company bought a commercial premises in*****George or Berkeley Homes.
We took a loan out with HSBC to pay towards part of the commercial premises.
Unfortunately, we were not able to use our own solicitor who's firm specializes in residential/commercial conveyancing.
HSBC asked us to use one of their panel solicitors, who explained nothing to us nor brought up to us that the lease drawn up by St George was an onerous lease.
We opened a French kitchen franchise from the commercial premises in January 2015, unfortunately due to quality control and kitchens not arriving on time, the franchise has ceased trading. It became not a viable business.
This leaves us with the onerous lease, we have tried to sell the premises but because of Brexit, this has not been possible.
We have a business wanting to rent the premises on a ten year lease with a 5 year break clause. They wish to open a restaurant within the premises.
Unfortunately, there is a clause in our lease that says we cannot change the business from an A1 showroom to an A3 restaurant status until the end of 2017 and then only with St George's consent.
The originally selling brochure, together with the development sales model within the marketing suite clearing shows a restaurant in our commercial unit i.e. The Boathouse Restaurant with tables and chairs outside.
We have been trying since March of this year to get St George to accept a change of lease enabling our client to open his restaurant within our premises.
Tonight we received an email from St George and still they are quoting our onerous lease and not giving permission one way or another.
We are still having to service our loan with the HSBC, which is becoming more and more difficult by the day, together with VAT, Rates and service charges on the unit.
We feel that St George are being unreasonable, we were sold a commercial unit with a brochure clearly showing A1-A4 usage, they seem to not want to help us at all!
Any advise would be very welcome as we are about to go under and I personally will have lost £260,000
Thanks
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

Did the solicitors acting for you (HSBC panel) give any advice on the lease at all particularly with regard to the use or any other points in the lease? How would they have known some stage in the future, you might want to sell up and change the use completely? They give you a report on the lease?

What is onerous about the lease? Just the fact that it is A1 use only? Does it actually say in the lease that this is A1 use only or does it say “or any other use which the landlord may approve”? Does the brochure SAY A1-A4 use?

Does it say anywhere that consent is not to be unreasonably withheld or delayed?

If you can attach the lease, I am happy to tell you whether these clauses are in because I will obviously know where to look.

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