Question for PH lawyers
Discussion
A few weeks ago I took over a short (18 month) lease of a small business unit from a tenant. Last month I got a letter from the landlord saying that the previous tenant didn’t pay his final three months rent and that I needed to pay it – it’s about £4k. “What the hell’s that got to do with me”, I ask myself? I phone my lawyer who was involved in drawing up the contract and asked him whether I’d be liable in any way for a previous tenant. “Of course not”, he replies. I write to the landlord saying that it’s nothing to do with me and take the matter up with the previous tenant. I get another letter which says I’ve taken responsibility for all and any previous liabilities – according to the contract. My lawyer says “that’s rubbish”. However, my lawyer is now saying that “maybe they have a case and you should probably pay it” – which I’ve now done. As such, I feel I’ve been badly advised by my lawyer in signing the contract.
My question is two-fold: (1) I assume that this is unusual to be called to task over a previous tenants non-payment. (2) If the answer to the first question is “yes” what recourse do I have with the lawyer?
My question is two-fold: (1) I assume that this is unusual to be called to task over a previous tenants non-payment. (2) If the answer to the first question is “yes” what recourse do I have with the lawyer?
Tonker's right - contractual burden cannot be assigned, only benefit. One can only assume burden of a contract by novation - and this will not have heppened in a leasehold contract.
Thus, even if your lease says that you assumed the burden, the specific term should not apply. Therefore *I think* you should not have paid the money.
'course, I could be mistaken - I'm a corporate lawyer, not a property lawyer: rude boy
You have two courses of action:
- seek to recover from the landlord
- sue the lawyer; he has given you bad advice (at the very least he should have picked up on a contractual term purporting to assign burden...monkey.
>> Edited by Harry Flashman on Tuesday 14th June 09:50
Thus, even if your lease says that you assumed the burden, the specific term should not apply. Therefore *I think* you should not have paid the money.
'course, I could be mistaken - I'm a corporate lawyer, not a property lawyer: rude boy
You have two courses of action:
- seek to recover from the landlord
- sue the lawyer; he has given you bad advice (at the very least he should have picked up on a contractual term purporting to assign burden...monkey.
>> Edited by Harry Flashman on Tuesday 14th June 09:50
Harry Flashman said:I agree with Harry (and suffer equally from being a corporate rather than a property lawyer). Your lawyer needs to do rather more than he has done so far. You need to ask for specific advice as to what term he thinks might make you liable. Then you should ask him why he didn't point that out to you before you signed.
Tonker's right - contractual burden cannot be assigned, only benefit. One can only assume burden of a contract by novation - and this will not have heppened in a leasehold contract.
Thus, even if your lease says that you assumed the burden, the specific term should not apply. Therefore *I think* you should not have paid the money.
'course, I could be mistaken - I'm a corporate lawyer, not a property lawyer: rude boy
You have two courses of action:
- seek to recover from the landlord
- sue the lawyer; he has given you bad advice (at the very least he should have picked up on a contractual term purporting to assign burden...monkey.
>> Edited by Harry Flashman on Tuesday 14th June 09:50
anonymous said:
[redacted]
Let's make it four then...
Without wanting to get stuck into the weird and wonderful intricacies of property law, I'm with Zod on this one.
With the limited info available, it does appear to me that your lawyer needs to do a bit more than he's already done. Certainly, whenever one enters into a domestic property transaction, one should expect as a pre-condition to completion that all apportionments which lay with the outgoing owner/tenant are paid.
At the very least I would ask him to confirm:
1. On what grounds you are liable (contractual/statutory);
2. Why you weren't advised of this at the time;
3. Why payment of outstanding debts was not included as a pre-condition to completion;
4. The options open to you to recover the £4k.
Just my $0.2 and the usual disclaimers apply - don't treat this as legal advice as I know effall about property law...
Thanks chaps. I've cherry picked your various comments and have sent an email to the lawyer asking him to call me to discuss the various points.
I also made it clear that he's made an almighty U-turn (from "throw it in the bin" to "pay it"
, which also causes me to question his ability and advice. I've also said that I'm expecting some recompense from any poor advice given. His PA emailed me back and said he'd call me this afternoon. I'll let you know what he says!
I also made it clear that he's made an almighty U-turn (from "throw it in the bin" to "pay it"
, which also causes me to question his ability and advice. I've also said that I'm expecting some recompense from any poor advice given. His PA emailed me back and said he'd call me this afternoon. I'll let you know what he says!I am not a lawyer, but am instead a surveyor and I am looking forward to seeing the answer.
I think it might depend on how you have taken on the un-expired portion of the lease. If you were a sub-tenant and too a lease from the existing tenant for the last 18 months or so, then the head landlord would have no come back on you.
However I assume that you have taken an assignment and therefore taken on the liabilities under the existing lease, and I suppose this might make a difference.
Irrespective on whether you are liable or not I would assume that a reputable lawyer should have ensured there were no liabilities outstanding when you took over the lease, so blame the laywer!
I think it might depend on how you have taken on the un-expired portion of the lease. If you were a sub-tenant and too a lease from the existing tenant for the last 18 months or so, then the head landlord would have no come back on you.
However I assume that you have taken an assignment and therefore taken on the liabilities under the existing lease, and I suppose this might make a difference.
Irrespective on whether you are liable or not I would assume that a reputable lawyer should have ensured there were no liabilities outstanding when you took over the lease, so blame the laywer!
chrisgr31 said:
I am not a lawyer, but am instead a surveyor and I am looking forward to seeing the answer.
I think it might depend on how you have taken on the un-expired portion of the lease. If you were a sub-tenant and too a lease from the existing tenant for the last 18 months or so, then the head landlord would have no come back on you.
However I assume that you have taken an assignment and therefore taken on the liabilities under the existing lease, and I suppose this might make a difference.
Irrespective on whether you are liable or not I would assume that a reputable lawyer should have ensured there were no liabilities outstanding when you took over the lease, so blame the laywer!
Yes, good summary - you hit the nail on the head!
and good luck sorting out the problem. chrisgr31 said:
However I assume that you have taken an assignment and therefore taken on the liabilities under the existing lease, and I suppose this might make a difference.
As mentioned above, you can't assign liabilities. You would needed to have entered into a transfer/novations of the lease to effect this, i.e. essentially a new agreement between you and the landlord.
Nevin said:
However I assume that you have taken an assignment and therefore taken on the liabilities under the existing lease, and I suppose this might make a difference.
As mentioned above, you can't assign liabilities. You would needed to have entered into a transfer/novations of the lease to effect this, i.e. essentially a new agreement between you and the landlord.
And if your lawyer allowed this to happen without telling you, that's professional negligence; so you can get the cash back from him if necessary.
Gassing Station | The Pie & Piston Archive | Top of Page | What's New | My Stuff