If you’re a landlord, it’s alarmingly easy to end up agreeing to something your tenant has requested by mistake – or for your advisers or agents to do so on your behalf.
Leases will usually stipulate that certain things cannot be done without the landlord’s consent, such as for example assignment, sub-letting, carrying out alterations or changing the use.
Nowadays most leases require that consent to be given in writing.
However, if a landlord or its representatives are careless in their correspondence, including e-mail, then there is a danger that consent is given prematurely, preventing the landlord from later withdrawing that consent or imposing conditions.
Using phrases like “subject to licence”, “subject to contract”, or “consent in principle” do not in themselves stop correspondence from amounting to consent, whether it comes from the landlord, its agents or its solicitors.
So make sure all correspondence is suitably qualified. For example, if you are acting for a landlord your initial letter and subsequent correspondence should say:
“Please note that we have no authority; express or implied, to give or sign consent on behalf of the landlord.”
When indicating consent in principle, you should also say something along these lines:
“Our client is prepared to consider your application for consent if [set out any conditions] but we must stress that this letter forms no consent in itself and consent will only be given, if those conditions are satisfied, by formal licence/deed.”
Whether you can specify that the consent must be by deed or licence will depend on what the lease says.
But don’t forget, in trying not to say yes, when you might mean no, you might also be under an obligation to be reasonable and to respond within a reasonable time.
There may still be some leases around which do not require consent to be given in writing. You need to be extra careful with these, as just having a conversation might amount to consent.
Life’s full of the inadvertent.
Photo by corykrug via Flickr