Does my leaseholder have the right to compel me to evict a tenant?

by Readers Question

10:30 AM, 4th August 2016
About 2 years ago

Does my leaseholder have the right to compel me to evict a tenant?

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Does my leaseholder have the right to compel me to evict a tenant?

Hi there, can anyone advise me whether my leaseholder can force me to evict a tenant under a section 146 notice?eviction

I have a tenant in a block of flats whose behaviour can be antisocial at times due to her mental health issues. My leaseholder is threatening to revoke the lease under a section 146 notice unless I evict the tenant.

Please can anyone advise me if they have any experience of this – from what I can see the section 146 notice is more commonly used for maintenance issues.

Many thanks for your comments and shared experiences.

Natasha



Comments

Neil Patterson

10:35 AM, 4th August 2016
About 2 years ago

Hi Natasha,

Not being an expert I Googled the .Gov page on section 146 >> http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/146 It doesn't look like it specifies what the breach must be for.

146 Restrictions on and relief against forfeiture of leases and underleases.

(1)A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice—

(a)specifying the particular breach complained of; and

(b)if the breach is capable of remedy, requiring the lessee to remedy the breach; and

(c)in any case, requiring the lessee to make compensation in money for the breach;

and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.

(2)Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself, apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit.

(3)A lessor shall be entitled to recover as a debt due to him from a lessee, and in addition to damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this Act.

(4)Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, or for non-payment of rent, the court may, on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor’s action (if any) or in any action brought by such person for that purpose, make an order vesting, for the whole term of the lease or any less term, the property comprised in the lease or any part thereof in any person entitled as under-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the court in the circumstances of each case may think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease.

Jay James

11:21 AM, 4th August 2016
About 2 years ago

Speaking from experience and not expertise, it can take rather a long time for the freeholder to revoke a lease. Even so, it can be a stressful time for the lessee. If the freeholder has cause to request you evict, then it would seem reasonable for the freeholder to explain this cause to a court in order to help you gain an eviction.

Ask the freeholder if they will do this. If they are not willing, ask them to stop contacting you on the matter.

Charles King - Barrister-At-Law

13:55 PM, 4th August 2016
About 2 years ago

Jay is right, and a 146 notice (seeking forfeiture) is the right notice, a prerequisite for claims by any freeholder concerning any breach of a long lease other than rent arrears. I'm sure you've checked that your lease allows you to sub-let. If not please do it now, or you will end up in serious trouble. I would (very strongly) give the same advice to anybody reading this who owns leasehold property which is sub-let to tenants. Check it!

Your legal position, however, is that unless there is a very strict clause in your lease (i.e., in your lease with the freeholder rather than the tenancy agreement you have with the nuisance tenant) you have absolutely no liability or responsibility for any nuisances caused by your tenants unless you have plainly authorised that nuisance. A young up-and-coming barrister called Charles King tried to argue that point in the Court of Appeal (and House of Lords as it was then called) many years ago and lost the case! (See http://www.bailii.org/ew/cases/EWCA/Civ/2000/357.html). Licensees, I notice, are a different matter according to a recent case which I have only just seen. It all depends on the degree of control you have over the property. Letting a property to tenants means that you have no control - or insufficient control - so as to be able to stop the nuisance. Best of Luck Natasha

terry sullivan

13:55 PM, 4th August 2016
About 2 years ago

i think the freeholder has no choice as he could be jailed for not acting tto stop the asb--case reported recently! Ask local council and police for advice urgently

Fiona Macaskill

14:02 PM, 4th August 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "04/08/2016 - 13:55":

Thank you Charles, that is very useful indeed.

Michael Barnes

14:10 PM, 4th August 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "04/08/2016 - 13:55":

Are you saying that
a) the lease should explicitly allow subletting, or
b) the lease should not explicitly forbid subletting?

terry sullivan

14:13 PM, 4th August 2016
About 2 years ago

subletting implies long-term lease not AST--i think that is accepted--Unfair contract terms

Charles King - Barrister-At-Law

14:30 PM, 4th August 2016
About 2 years ago

Reply to the comment left by "Michael Barnes" at "04/08/2016 - 14:10":

The lease should not forbid subletting, or say anything like "the tenant covenants only to use the demised premises as a bakery..." or something like that. Even if the lease says the premises are "only to be used as a single dwelling" you would be in breach by letting 2 or more rooms on separate agreements. There are some very aggressive freeholder solicitors who love trying to forfeit long leases once they get wind of minor breaches. They argue that subletting is a 'once and for all ' breach that cannot be remedied. Once the lease is forfeit you can lose everything you have invested - even if you have paid off 99% of the mortgage and the property is worth £500,000. You can lose it all. It doesn't happen often as far as I can tell, but it is worth worrying about and avoiding. At the very least the situation can easily become a terrible expensive nightmare. And don't get me started on shared ownership leases....they're even worse!

Charles King - Barrister-At-Law

14:42 PM, 4th August 2016
About 2 years ago

Reply to the comment left by "terry sullivan" at "04/08/2016 - 14:13":

If you mean under the new Consumer Rights Act 2015 there are restrictions on striking down unfair contract terms (a) involving land (b) where the subject matter of the contract is the issue and (c) where you are not a consumer (i.e., you are a buy to let landlord for profit and therefore not regarded as a consumer). You could try it I suppose, but it would be a rather risky business. What if it didn't work and you lost? Not nice.

David Atkins

18:59 PM, 4th August 2016
About 2 years ago

A freeholder cannot force you to evict a tenant but if you have a mortgage a copy will be sent to your bank/bs who will require you to remedy the breach.

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