Nasty letter from freeholder of retirement housing

SDLT_Geek

waribai said:

SDLT_Geek said:

waribai said:

It does also say

"(b) not to assign transfer underlet or part with or share possession of the whole of the Dwelling:

other than to an assignee or underlessee...........

I would be more interested to see the clause stating who can occupy the property, given that that could be an ongoing breach, rather than the one off breach that could have happened on an assignment.

Those are the only references to pensionable age in the lease...

It is possible that it is too late for the landlord to forfeit the lease now for a one off breach of the lease (the assignment) if it was some time ago and rent has been collected since with knowledge of the breach: https://www.blakemorgan.co.uk/waiver-by-the-landlord-of-right-to-forfeit-a-tenants-lease/

RHemmings

SDLT_Geek said:

waribai said:

SDLT_Geek said:

waribai said:

It does also say

"(b) not to assign transfer underlet or part with or share possession of the whole of the Dwelling:

other than to an assignee or underlessee...........

I would be more interested to see the clause stating who can occupy the property, given that that could be an ongoing breach, rather than the one off breach that could have happened on an assignment.

Those are the only references to pensionable age in the lease...

It is possible that it is too late for the landlord to forfeit the lease now for a one off breach of the lease (the assignment) if it was some time ago and rent has been collected since with knowledge of the breach: https://www.blakemorgan.co.uk/waiver-by-the-landlord-of-right-to-forfeit-a-tenants-lease/

From the link posted by @SD@SDLT_Geek

In circumstances where there has been a breach of the lease that entitles a landlord to forfeit, the landlord must elect whether or not to treat the lease as at an end or to treat the lease as continuing regardless of the breach.

If the landlord, by his conduct, treats the tenant’s lease as continuing, the landlord can lose his right to forfeit the lease.  Such act is known as “waiver” (a decision or apparent decision by the landlord to treat the lease as continuing).

In order for waiver to prevent forfeiture there must be all of the following:

1. Knowledge of the breach; AND
2. Unequivocal recognition of the continuation of the lease; AND
3. Communication of unequivocal recognition to the tenant

Flugelhorn

RHemmings said:

1. Knowledge of the breach

So will it come down to "what did they know and when did they know it?"

AskAsk

brianposter said:

What does "pensionable age" actually mean given that it is perfectly possible to receive a pension well below the age of 60 ?

the letter is a bluff or someone having a laugh as it would define the actual age that it refers to as pensionable age.

Flugelhorn

AskAsk said:

brianposter said:

What does "pensionable age" actually mean given that it is perfectly possible to receive a pension well below the age of 60 ?

the letter is a bluff or someone having a laugh as it would define the actual age that it refers to as pensionable age.

it does later mention "state pensionable age" as does the lease 

AskAsk

Flugelhorn said:

AskAsk said:

brianposter said:

What does "pensionable age" actually mean given that it is perfectly possible to receive a pension well below the age of 60 ?

the letter is a bluff or someone having a laugh as it would define the actual age that it refers to as pensionable age.

it does later mention "state pensionable age" as does the lease 

you are right.  i thought the OP couldn't find the lease?

Flugelhorn

AskAsk said:

Flugelhorn said:

AskAsk said:

brianposter said:

What does "pensionable age" actually mean given that it is perfectly possible to receive a pension well below the age of 60 ?

the letter is a bluff or someone having a laugh as it would define the actual age that it refers to as pensionable age.

it does later mention "state pensionable age" as does the lease 

you are right.  i thought the OP couldn't find the lease?

they managed to download some documents - they are discussed somewhere in the middle of the thread

ETA here onwards https://forums.moneysavingexpert.com/discussion/comment/81313427/#Comment_81313427

AskAsk

Flugelhorn said:

AskAsk said:

Flugelhorn said:

AskAsk said:

brianposter said:

What does "pensionable age" actually mean given that it is perfectly possible to receive a pension well below the age of 60 ?

the letter is a bluff or someone having a laugh as it would define the actual age that it refers to as pensionable age.

it does later mention "state pensionable age" as does the lease 

you are right.  i thought the OP couldn't find the lease?

they managed to download some documents - they are discussed somewhere in the middle of the thread

ETA here onwards https://forums.moneysavingexpert.com/discussion/comment/81313427/#Comment_81313427

i see.  when my in-laws was in the process of buying a retirement bungalow last year, they needed to get approval from the complex manager that they were eligible to be residents on the complex.  it wasn't just age that had to be determined but also being independent as you could not be a resident if you needed care and was not independent so i am not sure how the OP's relation has been able to get residency without having to be vetted.

but yeah, looks like she needs to wait for the conveyancer to get back as it is pointless speculating.

waribai

Thanks for all the advice. Yes. She is still waiting for contact from the purchasing solicitor. We are though in the meantime contacting a leasehold specialist solicitor for some pro bono independent advice (recommended by a parliamentary campaigner on leasehold). My strong suspicion is that the freeholder is hoping for her to panic and ask for their assistance. They would then advise her to put it on the market. They will then come to the 'rescue' with a very low offer to ameliorate the situation. Once she has moved out they will then sell it an increased price on the open market or possibly rent it out. Who knows?
I am hoping that as they are a slightly dodgy outfit anyway, they will be averse to trying to go down the legal route especially if she communicates with them via legal channels only and makes it clear that it is not her living there that is in breach of the terms but the transfer that was a breach.

eddddy

SDLT_Geek said:

waribai said:

SDLT_Geek said:

waribai said:

It does also say

"(b) not to assign transfer underlet or part with or share possession of the whole of the Dwelling:

other than to an assignee or underlessee...........

I would be more interested to see the clause stating who can occupy the property, given that that could be an ongoing breach, rather than the one off breach that could have happened on an assignment.

Those are the only references to pensionable age in the lease...

It is possible that it is too late for the landlord to forfeit the lease now for a one off breach of the lease (the assignment) if it was some time ago and rent has been collected since with knowledge of the breach: https://www.blakemorgan.co.uk/waiver-by-the-landlord-of-right-to-forfeit-a-tenants-lease/

Yep - but if neither side backs down, it will be up to a tribunal/court to decide whether the lease can be forfeited. 

This sounds like the kind of case which isn't clear cut - there might be differing legal opinions on whether their is an ongoing breach, whether the freeholder's actions constitute continuing the lease, etc. This could make the process very expensive - lots of high legal fees.


And unfortunately, it's often not really a level playing field - the freeholder often has an unfair advantage.


If neither the OP or the freeholder backs down, the next stage will probably be instructing solicitors (to read leases, review each party's actions, give an opinion on the chances of success in court)...

• if the freeholder ultimately 'wins' - the OP will probably have to pay the freeholder's legal costs

• if the freeholder ultimately 'loses' - the freeholder's legal costs can probably be paid from service charge funds (i.e. The leaseholders end up paying as a group)

• So the freeholder can probably instruct super-expensive solicitors, knowing that whether they win or lose, it won't cost them a penny

• Whereas the OP risks having to pay their own legal costs, plus their freeholder's legal costs

And if it progresses to court, those legal costs will get higher and higher.


(And/or it's also possible that if this results from another leaseholder's complaint, that leaseholder is indemnifying the freeholder's legal costs - which might make legal action less likely - which might be good for the OP.)