breach of long lease

Submitted by billyboy on Fri, 27/01/2012 - 17:31

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I have a long lease (125 years) on a flat and sublet (which is allowed) to a tenant on an assured shorthold tenancy.

I have been accused of a breach of lease by the freeholder for the building for various reasons which, if the allegations are true, appear to be down to the behaviour of an individual who does not have any right to occupy the flat. This includes an accusation of smoking cannabis in the flat.

I am worried because I have a history of successful legal action against the freeholder and believe they will take up forfeiture action against me even if it only results in legal costs being awarded against me.

My tenant claims to have been away from the flat whilst this individual (a 21 year old nephew of the tenant) has been staying there (less than 2 weeks I believe and only now and again). She says she has not given permission for him to be there and has not provided him with keys. Strange as it may sound I do actually believe my tenant because this nephew has a history of causing problems for his own family.

I am not sure how he gained access but believe that another flat owner allowed him access to the building on each occasion he stayed there. He may well have forced the flat door or it might not have been shut properly.

Do I have any defence against this alleged breach if it turns out to be true? I don't want to, but can I give my tenant notice even though I can't prove she has broken the terms of her AST?

You can absolutely give your

Submitted by BlueView on Fri, 27/01/2012 - 19:36.

You can absolutely give your tenant notice (and in my view you should, irrespective of whether you believe her or not).

You would use ground 14, which covers this type of nuisance. It is, however, a discretionary ground, which means that possession is not guaranteed - but in all honesty, I cannot see a judge not granting possession if there is a likelihood of the incident occurring again with the result that you may have your lease forfeited.

If you take action to stop the breach, then you have a defence if the freeholder takes it to court.

Profile: Bar Student - 25+ year work history incl. 10 years in child protection - four years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; repossession hearings. Advice is provided for the purpose of answering the questions posed, based on the information given.

should I ask for proof

Submitted by billyboy on Sun, 29/01/2012 - 11:21.

Thanks for your advice.

Before giving notice should I not ask for proof of the allegations? A lot of the claims look very dubious to me.

What would constitute proof? There is a complaint of loud music after the hours of 11pm (if true that breaks the regulations in my lease), however the lady who lives below my flat claims she can hear every movement in my flat and has heard no loud music.

Of course you should ask the

Submitted by BlueView on Sun, 29/01/2012 - 17:08.

Of course you should ask the freeholder for proof...in writing if you haven't already done so. I presumed from the wording of your original post that evidence had been provided to you.

If you feel that any evidence provided is weak or untrue, then you are free to challenge it. Your neighbour should be prepared to provide a witness statement of her view should the freeholder decide to take you to court for forfeiture.