Definition of 'part with possession' in a lease!

K1RST1E_2

Hi,

Could someone tell me what 'part with possession' on a lease means please?

The actual clause is as follows:

3.14.1 Not at any time during the term to assign, underlet, sublet, or part with possession of the whole or part of the Premises (other than by way of mortgage) save in accordance with clause 3.14.2 hereof and not to assign part only of the Premises.

3.14.2 The Leaseholder may (subject to the provisions of clause 3.15) assign the whole of the Premises with the prior written consent of the Landlord and provided that the assignee first enters into a direct covenant with the Landlord to pay the specified rent and all other sums payable under the terms of this lease ... the Landlord will not unreasonably withhold the consent.

Thanks.

Kynthia

I've googled the term and there was a case where a judge decided that a leaseholder hadn't parted with possession unless the person in occupation had the right to 'exclude' others including the leaseholder. Obviously you may want to get the definition confirmed.

Do some reading to understand what scenarios would lead to someone else having 'exclusive occupation' of all or part of the property, such as in England letting the whole of the property or one room would. A lodger or someone staying in the property without you but paying absolutely no rent (or rent in kind) would not have the right to exclude you.

K1RST1E_2

Thank you. The Housing Association I have this lease with tell me that it means I can't leave the house unoccupied but parting with occupancy doesn't mean ownership as I'd still be paying the rent and going back each week or so to carry out inspections as requested by the insurance company. Am I barking up the wrong tree here in thinking that?

Kynthia

Do you own the property or do you rent? Is it shared ownership? Have the HA said what they'll do if you're not in occupation? Do they only refer to these two clauses to back up the fact they believe you must remain in occupation?

K1RST1E_2

I own 50% and pay rent on the other half so shared ownership. They have said that could take legal action against us if we breach the lease and they have only stated these clauses to back up that the shared ownership property needs to be our main and principle home.

We have inherited a house that we want to move to in January as it's closer to family, work and childcare. They won't let us sublet the shared ownership property so we want to leave it vacant on the open market. It's for sale at the moment and has been since May. The insurance company are aware of our intentions and will still cover us for vacant possession but the Housing Association are saying it can't be left unoccupied.

Richard_Webster

3.14.1 Not at any time during the term to assign, underlet, sublet, or part with possession of the whole or part of the Premises (other than by way of mortgage) save in accordance with clause 3.14.2 hereof and not to assign part only of the Premises.

but the Housing Association are saying it can't be left unoccupied.

I really cannot see how the above clause can be read to mean that the property cannot be left unoccupied - this is Housing Association staff being amateur lawyers making up the law. Occupation and possession are not the same thing and leaving a property unoccupied does not mean that you have parted with possession of it.

K1RST1E_2

I'm glad I'm not the only one who thinks these clauses do not state what they think it does. I'm not even sure why they are so bothered as to whether or not we're living there as long as they are still getting their rent and the house is still being maintained!

propertyman

Ahh no there is a misunderstanding here.


1 yes the extract from your lease does not refer to occupation ( save that you cant let it out) however
2 you need to look elsewhere for any restrictions in either your qualifiation for SO, agreements or even in the lease that requires occuaption of the property to be your principle residence.

The person replying may be right , but have quoted the wrong extract.

I would reply

" having read the extracts that your refered to none of these refer to occupation save that we cannot let the property out.
I would be grateful if you would immediately re consider your rely and explain on what basis your statement was been made, and set out your current position, within 10 working days.

if you fail to do so I will use your formal complaints procedure to to
a- clarify the position
b-reserve my position on the threats of forfeiture as harrassment and a breach of quiet enjoyment".

Kynthia

I agree with Propertyman. The clauses referred to don't mean you must remain in occupation, however there may be some other clsuse, particularly in the paperwork relating to the rental share of your property, which does. Look through it and maybe pay your original conveyancing solicitor to look through the lease and other relevant documents and advice you on the above clauses and any agreement to occupy.

Secondly, how will they know if you move out in Jan and visit regularly and progress the sale?

K1RST1E_2

Thanks for your replies. I have gone through all of our paperwork from when we bought the house 6 years and I can't find anything that states it is to be our main and principle home.

I have, however, been googling this furiously and discovered that to apply and be eligible for shared ownership, the house you are buying must be your main and principle home but as I have no documentation to support this, I'm not sure in what nature that must be. Obviously people's circumstances change. At the time of applying for our shared ownership property, it was to be our main and principle home which it has continued to be for the past 6 years until just recently when we have inherited this other property.

I'm going to contact the HA again with this information. I have also contacted Lease Advice to shed some light on the situation.

propertyman

K1RST1E wrote: »

Thanks for your replies. I have gone through all of our paperwork from when we bought the house 6 years and I can't find anything that states it is to be our main and principle home.

I have, however, been googling this furiously and discovered that to apply and be eligible for shared ownership, the house you are buying must be your main and principle home but as I have no documentation to support this, I'm not sure in what nature that must be. Obviously people's circumstances change. At the time of applying for our shared ownership property, it was to be our main and principle home which it has continued to be for the past 6 years until just recently when we have inherited this other property.

I'm going to contact the HA again with this information. I have also contacted Lease Advice to shed some light on the situation.

There is no need You have the draft letter as this sort of thing I do for a living.

You have found what i was alluding to, a qualification for SO, and that is common to most but not all shared owneship.

Thats why you need to ask them to tell you why. Just be careful about insisting that you have moved out in full forever.