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Problem with lease - urgently need solicitor recommendations, please!

18 replies

HolidayLetter · 09/10/2018 08:32

I have been letting out a flat for the past 8 years on a holiday let basis (bought it as an ongoing holiday let). However, I have just received a solicitor's letter from the freeholder, saying that the holiday let is in breach of the lease and has to be shut down with immediate effect.

My entire livelihood, and my children's home, depends on me being able to run this flat as a holiday let. I therefore need to find the best possible lawyer. Can anyone recommend anyone who specialises in this rather niche area, please? I can travel, if need be. I can't in fact afford a lawyer - but I can even less afford to lose this holiday let, so I'm stuffed every which way.

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WerewolfNumber1 · 09/10/2018 08:44

That’s not terribly niche, you’re looking for a property (or real estate) solicitor with experience in leasehold disputes.

You shouldn’t need to travel, most lawyers can do everything by email and phone now.

There is a list of solicitors (you can search by specialism) on the law society website.

What does the freeholder say is the relevant term of the lease? Can you quote it here?

The other thing to consider is whether the freeholder has known about use as a holiday let? If they’ve known for a while and not objected they may have waived the breach (ie given up the right to complain about this).

Littlemissdemeanour · 09/10/2018 08:56

Sorry, but this is a complete breach. I have extensive experience in this area as a fellow perturbed neighbour of multiple holiday lets.

The first letter states you must stop with immediate effect as a breach has been proven (and they've sufficient evidence to this effect). If you do not comply with this condition, it gets transferred to the Crown (England) or Procurator Fiscal (Scotland) for criminal prosecution. It is illegal.

At best you've probably been very naive about the situation, and I'm sure you meant no malice in this. However these holiday lets in blocks IMO are incredibly disruptive, preventing people from getting homes, and eroding a sense of community. You may think that's dramatic, but I've lived it. I'm also pushing for a
Criminal prosecution on multiple flats due to being woken up persistently and regularly through the night by 4am, 5am check ins....

Your buy to let mortgage is based on Just that. It does not (IME) extend to short term (and more lucrative) lets.

The law is really clamping down on this now, due to all of the reasons above. And it's likely new regulation will follow.

By all means, get a solicitor. However, it would be very prudent to re-evaluate and stop advertising, given the letter.

Stating that it is the only income is not a defence for flouting the law, and disturbing all the others in the area, I'm afraid.

Clare45BST · 09/10/2018 09:24

This reply has been deleted

Message withdrawn at poster's request.

LIZS · 09/10/2018 09:27

Have you checked the lease conditions, dod the solicitor when you purchased know of your specific plans?

Littlemissdemeanour · 09/10/2018 09:33

No, but I'm guessing the solicitor has seen something in the fellow freeholders deeds which explains the letter. A solicitor would not risk exposing themselves without sufficient grounds.

HolidayLetter · 09/10/2018 09:33

Thank you very much for your replies.

Werewolf, the freeholder has known all along. I have emails from their agent to say that they are happy with it, so long as they are kept informed as them knowing about it means the buildings insurance remains valid. The freeholder's solicitor, however, is now saying that holiday lets invalidate the buildings insurance.

The lease says: "Not to use the Flat nor permit the same to be used for any purpose… other than as a private dwelling house in the occupation of one family only nor for any purpose from which a nuisance or annoyance can arise to the lessor or the owners lessees or occupiers of other flats in the building…nor for any illegal or immoral purpose." I am told this is pretty standard wording, but that it is now often interpreted to mean 'no holiday lets', although this isn't explicit. This wasn't flagged up when I bought it as an ongoing holiday let concern, though. That said, there were relatively few holiday lets around when I bought this one, so there wasn't any particular need for a lease to exclude them specifically (all new-builds around here do specifically exclude them now).

Littlemiss, I'm sorry to hear that you have had such a bad experience. Please don't think all holiday let owners or tenants are so awful. I vet all my tenants prior to arrival, and meet them when they arrive. I once turned away a group of middle-aged women who were drunk when I met them; they were apoplectic and threatened me with the police, Trip Advisor etc - but it does say in my contract with all guests that they will be denied access to the property in such circumstances. Most guests are in fact elderly couples (mostly Australian/American - we're on the tourist trail), and I can't imagine they are up raving at 5 AM. FWIW, I have had similarly bad experiences with neighbours - though unfortunately they were permanent residents, not tenants of any description. I ended up moving out.

I agree that saying it's my only source of income isn't a defence for flouting the law. There are other factors which I think might make a difference (such as the one outlined in my response to Werewolf regarding the agents). One of the people who has provided 'evidence' (none of which is apparently available for me to see - I suspect that this is because it doesn't exist) to the freeholder does himself run a holiday let in this particular development. However, he has a varied lease which explicitly permits this (the lease was varied 12 years ago, prior to the flats coming on the market for the first time). He is very keen to keep other holiday lettings out! There are three of us running holiday lets in total, out of about 25 properties. Of the remaining properties, about half are owner occupied, and the rest are let out on ASTs.

I don't have any kind of mortgage on my flat, so am not breaching any conditions on that score. I have bookings well into next summer, but have meanwhile blocked out all the remaining availability until 2021, pending advice.

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Eminybob · 09/10/2018 09:34

Wow, Littlemissdemeanour, you have made a lot of assumptions there. Where does the op even say she has a mortgage?

Op, when you bought the place, were you clear to your solicitor what your intentions were for the property? If so they should have checked the terms of the lease to ensure that was satisfactory. Is there any chance you can speak to your original conveyancer to get clarification?

HolidayLetter · 09/10/2018 09:36

I was waffling so much that other replies have come in meanwhile. Thank you!

LIZS, yes, our conveyancing solicitor did know we were going to use it as a holiday let. A lot of research was involved into income streams etc, based on figures provided by the vendor (who, as I say, also ran it as a holiday let - she bought it from new, but never used it for any other purpose). It was also specifically flagged up as we sold another holiday let and rolled over the Capital Gain from that one into this one.

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SoupDragon · 09/10/2018 09:37

is now often interpreted to mean 'no holiday lets', although this isn't explicit

It is explicit isn’t it? It states you can only use it as a private dwelling for one family. A holiday let is not a private dwelling for one family.

HolidayLetter · 09/10/2018 09:38

Eminybob, thank you. My reply to LIZS would answer yours - and XH has just given me a massive folder of stuff relating to the purchase, including all the conveyancing docs. So I will sit down and have a proper read of everything. I've already been through all the emails relating to this property. What's really annoying is that we collectively had the chance to buy the freehold a few years ago, and it fell through due to our lawyers mis-wording our submission very slightly... Sigh...

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Eminybob · 09/10/2018 09:39

X posted with your update sorry.
If you were explicit in your intentions from the beginning and the freeholder was in agreement, but it has since found to be a breech of contract, I honestly don’t know where you would stand. Best of luck though, it sounds like a really shitty situation Flowers

Littlemissdemeanour · 09/10/2018 09:39

@HolidayLetter I'm not suggesting at all you're irresponsible, and this is not about 'vetting' for ravers; the 4,5am noise I refer to is the cases coming and going from airports, and being dragged along halls. You and others who undertake this have no idea what a daily blight it is to those who live in neighbouring properties. I'm not having a go at you, I'm just trying to get you to see what the shoe is like on the other foot.

I hope you get clarity with your situation.

HolidayLetter · 09/10/2018 09:44

SoupDragon, that's where the question of interpretation comes into it. Until relatively recently, hol let guests were deemed by Land Tribunals to be 'one family'. It's since the advent of Air BnB etc that it's now being interpreted differently (understandably so, in lots of cases - there are places where it would negatively affect the environment for permanent residents for all kinds of reasons). This is why I would like to find someone who could make a case based on all the salient facts in this particular instance.

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HolidayLetter · 09/10/2018 09:49

Littlemiss, I'm sorry you have to put up with that. That's a very different scenario from meeting guests at 4-6PM and escorting them and their luggage into the flat. My guests simply couldn't get access other than by me handing the key over to them. I can assure you I sympathise. I think we have probably all been on the receiving end of atrocious, don't-care-ish neighbours at some point.

Eminybob, that is very, very kind, and much appreciated. I feel absolutely desperate, hence posting for advice when it could be outing.

Werewolf, I will take your advice re solicitors. I had thought it would be nice, so it's a bit of a relief to hear it isn't. I have several friends who are lawyers, so will ask around. I had thought they wouldn't know of anyone specfic enough!

I have to clean said hol let now (no internet access for me there, as no smartphone), but will check this thread again later.

Thank you for the responses thus far.

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WerewolfNumber1 · 09/10/2018 11:11

Ok so if the freeholder has known, and not objected previously , your basic argument will be that they have waived the right to object.

If it’s been twelve years (and the previous owner used it the same way) then you should have a good case.

Collaborate · 09/10/2018 13:30

OP - Look up Proprietory Estoppel. Under this legal principle a landowner can be prevented from asserting their rights because they have allowed someone else to believe that those rights wouldn't be asserted, and were aware that on the basis of that understanding the buyer would commit themselves to a certain costly course of action. Sounds right up your street.

RedHelenB · 09/10/2018 16:16

Could you try again to buy the freehold?

HolidayLetter · 09/10/2018 16:44

Werewolf, thank you. That gives me a bit of hope amid all the gloom!

As does Proprietary Estoppel, Collaborate. Thank you so much for mentioning this. I had never heard of it, but have spent the past two hours reading up about it. It could perhaps be applied in this case, especially the category of "estoppel through silence or acquiescence"...

RedHelen, the freeholder won't sell, unfortunately!!

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