Tenant not paying rent because I don’t have consent to let

Antony forgive me for breaking down your comment but could you clarify:

1. Who is your legal team and their qualifications;
2. The "basis of your suggestion is common law" So your premise is a suggestion (not a legal point of law) based on common law. Which part of common law?
3. A tenancy could not be created as one of the owners did not give consent. Again where is the legal basis? Romain has already expounded on this and explained the issues very well. How is a mortgage lender an owner? They do not have title. The owner of the property does.
4. Where is the legal basis that states that if the lender has not given consent the tenancy is illegal and thus unenforceable? And please do not wrap it up in an all encompassing reference to common law.
5. The quality of debate and discussion on this and other threads on Property 118 is far from poor. In comparison to what other websites? Are the contributors to these more highly qualified than Mark Alexander, Romain, Industry Observer, Mary Latham et al?

Reply to the comment left by "Gary Nock" at "29/04/2015 - 23:14":

Excellent set of questions Gary. I don't know Anthony's qualifications or experience, perhaps it far exceeds my own, but to undermine and disparage the opinion of a whole set of other landlords is perhaps an indication of a unfounded sense of self importance? I don't know, perhaps Anthony really is the expert in such matters so no other landlord's experience or opinion matters? but whether this is the case or not, we are all here to offer our opinions as a means to try to help and support each other, so the readers of this thread can choose which opinions to pay heed to and which they wish to ignore. Personally, I think the HMO licencing situation is totally different and not really comparable. I am also of the opinion that a mortgage lender is not an "owner" of the property. But these are just my personal opinions, and perhaps it is "poor advice"?!!!!

Robert I agree entirely. If the advice given on Property 118 is that bad than please let it carry on as it has helped me enormously as a landlord and to start a business! I voluntarily pay a small subscription to 118 not to be a business subscriber but because of the good that it does for the landlord and tenant community.

Thanks again for all your advice and I will update this once I know more from the courts etc.

Thank you for all your help

Patrick

Reply to the comment left by "Antony Richards" at "29/04/2015 - 22:06":

Anthony
A little learning is a dangerous thing. I am afraid the advice you have from your team is wrong or else you have misunderstood it. As between the lender and the landlord and as between the lender and the tenant the lender will not be bound by the tenancy (absent special circumstances). The lender may be entitled to call in the loan for breach of the mortgage terms and to sell the property. He can take steps to evict the tenant. However, a tenancy exists. It is unauthorised or unlawful. It is not illegal (contrary to criminal law.) The mortgagees' remedies are civil remedies.

However, it is beyond doubt that as between landlord and tenant the lease is valid and the landlord can sue for rent and require the other covenants to be performed.

Your analogy of an (I assume unlicensed) HMO that ought to have been licensed is off the mark. It has nothing to do with the matter. (As an aside in your example whether or not the mortgagee had consented to the letting, the sanctions for not being licensed would apply.)

I speak as a City property lawyer with 30 years' experience. Happy to put your "legal team" right if they want to contact me. If they have some "common law" authority, please cite the relevant case(s).

Ian's latest reply to Antony Richards is absolutely spot on. I would just add that there is no way a mortgagee can be said to be an 'owner' of the property. The owner is the person in whom the legal estate is vested, not someone who has a legal charge on the property.

One further point to reinforce the argument that a lease is perfectly valid even if a ladlord has not got his mortgagee's consent – if a property owner grants a lease which is registerable at the Land Registry and the Registry is not supplied with evidence of the mortgagee's consent they will still register the tenant with absolute leasehold title (although they will enter a notice on the title about the apparent lack of consent.)

This suggests that the Registry, which is pretty expert on land law, accepts that a lease granted without consent is still perfectly valid as between landlord and tenant. If they thought it was illegal I very much doubt that they would register such a lease.

Although ASTs are not long enough to be registerable at the Land Registry the law is surely the same (unless someone can quote chapter and verse to the contrary.)

Reply to the comment left by "Antony Richards" at "29/04/2015 - 22:06":

Please provide references to the legal basis for your assertions.

Without legal basis, it appears to be just your view.

Ian has explained the basis of my opinion. The tenancy is unlawful.

If the terms of an unlawful tenancy can be enforced then I need to go back to school.

Goodbye

You must be reading a different post to me Antony. Ian has not confirmed your point; rather to the contrary. You consistently state this point of view without legal grounds or evidence to validate it. The tenancy is valid and enforceable. End of.

Reply to the comment left by "Antony Richards" at "04/05/2015 - 07:39":

Re your comprehension of written passages (eg Ian Narbeth, 30-04-15, 16.49).
Apparent age of your conduct also.

As you said "need to go back to school" - Indeed