Q: I am aware that we cannot ban subletting unless all leaseholders agreed to it – and they won’t!
However would we be within our rights to state that from a certain date we will only allow it with permission with the prime criterion being that you have to have lived on the estate for four years minimum and either a) the leaseholder has to go into a home and needs to raise money from the rent; or b) unavoidably having to work away; or c) another good reason necessitating an unavoidable move from the property?
Would having to obtain permission from the board be legally enforceable? Any decision would be made by the board in the first instance and then the AGM. We are keen to try and limit the number of people buying for rent.
A: FPRA Committee Member Shaun O’Sullivan replies:
Although I am not a lawyer, I can see nothing in your lease which inhibits flats being sub-let. Equally I can see nothing in your lease which provides for additional regulations being drawn up; and even if there were, I’m far from sure that you could do as you would wish as such regulations cannot contradict the terms of the lease which, although silent on sub-letting, does, by dint of its wording, contemplate this form of tenure.
Whatever might be decided by the Board or at an AGM is irrelevant; it is the lease which is the determinant. As you imply, the only real option would be for all leaseholders to agree to there being an absolute ban on sub-letting, in which case a deed of variation would need to be drawn up at cost; however such support appears not to be forthcoming. And even if you could gain support for a less stringent variation, such as that which would require leaseholders to seek approval before granting a tenancy, case law would suggest that any request to sub-let sought under such a covenant cannot unreasonably be withheld.
Question submitted February 2018