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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10778
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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We are moving abroad and we have a One bedroom flat

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We are moving abroad and we have a One bedroom flat that we couldn't sell as the lease is quite short (68 years) and we didn't have many clients on this length of the lease. We couldn't afford to extend the lease as is quite expensive a it takes long time.
We decided to let the property and we organised most of the paperwork to be able to rent. We contacted the freeholder agent on 22 May and asked for a consent to let letter. He verbally said that as far as he knows there is permission to rent those flats, but to request this in writing. After 2 weeks, he emailed me and asked me to send him a copy of the lease contract. It was for the first time when I have read the contract. A week later I called him as I didn't hear anything from him and we already appointed an estate agency which found a tenant. We are planing to leave the country on 28th July so the time is getting closer.
He told me that in the lease contract is not permitted to sub-let the property, but he'll have a meeting with the freeholder next week and it is most likely to make a variation on the contract and we'll have the permission to let.
After another week, he emailed me that the variation of the contract is not possible as the lease contract is the same for all the flats (16) and therefore there is not permitted to sub-let.
I called him and asked how come that there are other flats rented in the building and he said that there are 2 flats that are not under the lease (the owners are freeholders). I know for sure that there are at least 5-6 flats rented in the building.
Never mind other concern is now that it looks like we don't have any options. Is it right to be owner of a flat, to pay mortgage and ground rent, to leave the country and not be able to let out the property?...We can't just agree with that. We have just re-mortgaged and re-decorated and we have a tenant. On the other hand, it took a month for the freeholder agent to find out that we can't rent, when at first call he said that it was permitted. A month ago...we didn't have the property re-mortgaged, didn't have an estate agency involved, didn't have a tenant and could still sell it very cheap...just to get rid of it...
Is there any possibility for us to change the lease contract so we can let the property? What do we need to do?

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

You should double check the wording of your Lease but if it does state that you are not permitted to underlet (ie rent out), then I'm afraid the Freeholder can refuse you permission to do so, full stop.

I'm sorry you have waited a month to have confirmation from the Freeholder's Agent concerning this, but unfortunately, this delay or the matters you have done in the belief you are permitted to rent out, does not give you any special allowance.

So, legally, if the Lease does prohibit underletting, you are somewhat stuck, as your Freeholder could issue forfeiture proceedings against you (which is basically a claim to terminate the Lease) if you proceed with renting the flat out. Likewise, the Freeholder would normally write to your Mortgage Lender confirming that you are breaching the Lease.

I note that several other flats are rented out.This in itself does not make it legally OK for you to do so, but if I were you, I would contact the Agent to argue the case that other flats are being rented out and hence they should not now object to you renting out the flat. As I have said, this isn't a legal argument, but worth pursuing.

The only alternative is of course to put the Flat up for Sale. I appreciate this is not very practical, but Estate Agents can deal with the Sale even though you are abroad, and likewise, provided you have instructed a Solicitor before you leave, he can ge tthe ball rolling and do everything whilst you are abroad. The Contract and Transfer will need to be signed but this could be done by email and you returning the originals in the post.

I note there is only 68 years left on the Lease. If this does cause an issue in finding a Buyer, and the Lease needs to be extended, it would be normal procedure for you to obtain the Lease extension and complete it on the same day as you complete your Sale. This way, your Solicitor can use the Sale proceeds to pay for the Lease extension, meaning you don't have to pay for it upfront.

I am sorry this is perhaps not the answer you were looking for, but hope I have helped.

Kind Regards


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