Forfeiture order while in hospital.

hogsta_2

My brother died in hospital in February and whilst I was sorting out his flat, (it's in a retirement complex) I came across a pile of unopened letters one of which was a court order to pay outstanding service charges and lease fees to the landlord. The due by date was 15th February. My brother had certain health problems  which I won't go into here but needless to say he wasn't good at dealing with life issues. He died on the 21st after after an emergency admission on the 6th.

He left no Will so we contacted a company to deal with the probate who, when informed of this court order, stated that they were not qualified to deal with it and we would need to employ a specialist to get the order overturned. We have done this but the advice is that we need probate or letters of administration before he can do anything and we have only 6 months to apply. However, the company dealing with probate say it will probably take 6 months for that to be sorted.

The debt to the landlord has been paid and they have said they will not pursue the matter further. However, given the timelines involved we are worried that the forfeiture will go ahead anyway and we have paid of a debt of approx. £13000 for nothing.

Any advice on how we should proceed would be gratefully received. 

RAS

Which country is this in? Scottish law is very different.

hogsta_2

RAS said:

Which country is this in? Scottish law is very different.

This is in England.

Marcon

hogsta_2 said:

My brother died in hospital in February and whilst I was sorting out his flat, (it's in a retirement complex) I came across a pile of unopened letters one of which was a court order to pay outstanding service charges and lease fees to the landlord. The due by date was 15th February. My brother had certain health problems  which I won't go into here but needless to say he wasn't good at dealing with life issues. He died on the 21st after after an emergency admission on the 6th.

He left no Will so we contacted a company to deal with the probate who, when informed of this court order, stated that they were not qualified to deal with it and we would need to employ a specialist to get the order overturned. We have done this but the advice is that we need probate or letters of administration before he can do anything and we have only 6 months to apply. However, the company dealing with probate say it will probably take 6 months for that to be sorted.

The debt to the landlord has been paid and they have said they will not pursue the matter further. However, given the timelines involved we are worried that the forfeiture will go ahead anyway and we have paid of a debt of approx. £13000 for nothing.

Any advice on how we should proceed would be gratefully received. 

Has the landlord confirmed in writing that they will not pursue the matter further and will not seek to enforce forfeiture?

techphobe

I am not a lawyer but from a Google:

Once the court order has been issued only a claim for relief can overturn it.  The landlord cannot just decide not to take it further.

https://gatehouselaw.co.uk/relief-from-forfeiture-by-consent-residential-leases/

As the debt has been settled, a claim within 6 months to overturn the court order is almost certain to be accepted.
https://gunnercooke.com/relief-from-forfeiture-the-6-month-window-of-further-frustration-for-landlords/

The form you need to apply for relief is here. Doesn’t look complicated. Did the solicitor tell you why you needed probate before applying rather than just proof your brother was in hospital and died while the court order was being obtained?

https://assets.publishing.service.gov.uk/media/601bc358e90e07128691d2c0/n5a-eng.pdf

I would write to the landlord and inform them you will be applying to the court for relief of forfeiture so they don’t start the process to grant a new lease to a third party.
Then I would look up the relevant county court to see if you can find details on how to submit an N5a yourself along with proof the debt has been paid and a copy of your brother’s death certificate (I don’t know if there is a fee to do this). If there is any kind of contact number I would call them to get advice from the court. Once you know more about how to do this I would either submit if using the death certificate or get the solicitor to do it if it needs to be from them.
Start gathering the paperwork you need to apply for probate and do that as soon as you can.

Good Luck

user1977

RAS said:

Which country is this in? Scottish law is very different.

It is - we don't have residential leasehold property so this situation wouldn't arise in the first place.

hogsta_2

Marcon said:

hogsta_2 said:

My brother died in hospital in February and whilst I was sorting out his flat, (it's in a retirement complex) I came across a pile of unopened letters one of which was a court order to pay outstanding service charges and lease fees to the landlord. The due by date was 15th February. My brother had certain health problems  which I won't go into here but needless to say he wasn't good at dealing with life issues. He died on the 21st after after an emergency admission on the 6th.

He left no Will so we contacted a company to deal with the probate who, when informed of this court order, stated that they were not qualified to deal with it and we would need to employ a specialist to get the order overturned. We have done this but the advice is that we need probate or letters of administration before he can do anything and we have only 6 months to apply. However, the company dealing with probate say it will probably take 6 months for that to be sorted.

The debt to the landlord has been paid and they have said they will not pursue the matter further. However, given the timelines involved we are worried that the forfeiture will go ahead anyway and we have paid of a debt of approx. £13000 for nothing.

Any advice on how we should proceed would be gratefully received. 

Has the landlord confirmed in writing that they will not pursue the matter further and will not seek to enforce forfeiture?

Yes, I believe they have sent confirmation to the probate lawyers who then arrange payment from my brothers bank account.

hogsta_2

techphobe said:

I am not a lawyer but from a Google:

Once the court order has been issued only a claim for relief can overturn it.  The landlord cannot just decide not to take it further.

https://gatehouselaw.co.uk/relief-from-forfeiture-by-consent-residential-leases/

As the debt has been settled, a claim within 6 months to overturn the court order is almost certain to be accepted.
https://gunnercooke.com/relief-from-forfeiture-the-6-month-window-of-further-frustration-for-landlords/

The form you need to apply for relief is here. Doesn’t look complicated. Did the solicitor tell you why you needed probate before applying rather than just proof your brother was in hospital and died while the court order was being obtained?

https://assets.publishing.service.gov.uk/media/601bc358e90e07128691d2c0/n5a-eng.pdf

I would write to the landlord and inform them you will be applying to the court for relief of forfeiture so they don’t start the process to grant a new lease to a third party.
Then I would look up the relevant county court to see if you can find details on how to submit an N5a yourself along with proof the debt has been paid and a copy of your brother’s death certificate (I don’t know if there is a fee to do this). If there is any kind of contact number I would call them to get advice from the court. Once you know more about how to do this I would either submit if using the death certificate or get the solicitor to do it if it needs to be from them.
Start gathering the paperwork you need to apply for probate and do that as soon as you can.

Good Luck

Thanks for your reply.

The form does seem to be for the current leaseholder to complete. I think that until probate is granted we have no right to take responsibility for the lease and hence can't apply for relief. I will however take your advice and call the court for guidance.

Savvy_Sue

hogsta_2 said:

The form does seem to be for the current leaseholder to complete. I think that until probate is granted we have no right to take responsibility for the lease and hence can't apply for relief. I will however take your advice and call the court for guidance.

That's the best plan. I believe, however, that if you were executor, then you'd be able to act even before probate was granted, because being executor would give you that authority. And my reasoning goes on to suggest that if you are the logical person to apply for Letters of Administration, then that gives you the same authority. 

Does it look as if his estate will be solvent? Or are there other outstanding debts which you won't be able to pay off? 

I am sorry for your loss, and the difficulties you've been left to deal with alongside the grief. 

hogsta_2

Savvy_Sue said:

hogsta_2 said:

The form does seem to be for the current leaseholder to complete. I think that until probate is granted we have no right to take responsibility for the lease and hence can't apply for relief. I will however take your advice and call the court for guidance.

That's the best plan. I believe, however, that if you were executor, then you'd be able to act even before probate was granted, because being executor would give you that authority. And my reasoning goes on to suggest that if you are the logical person to apply for Letters of Administration, then that gives you the same authority. 

Does it look as if his estate will be solvent? Or are there other outstanding debts which you won't be able to pay off? 

I am sorry for your loss, and the difficulties you've been left to deal with alongside the grief. 

Thanks for your reply.

I will see if the court can provide me with some advice.

There are other debts but the estate should still be solvent after they are all paid, as long as the legal fees don't escalate. 

techphobe

This Land Registry blog says ‘ The tenant and any person having an interest in the lease, such as a chargee or subtenant, may apply to court for relief from forfeiture.’

Are you your brother’s most entitled inheritor or are your parents still alive? If you are the most entitled inheritor and applying for probate then, as others have said, that would give you an interest in the lease and allow you to apply. 

https://hmlandregistry.blog.gov.uk/2017/02/14/cancellation-of-leases/