I am advising the tenant of a commercial property whose lease enables the tenant to purchase the freehold at a price to be agreed on serving a notice to that effect. I have served notice. The lease contains a timetable for reaching agreement on the value and what will happen if agreement is not reached by the due date.
The landlord's lawyers say that because probate has not been granted, moreover not yet applied for, nothing can be done about complying with the notice timetable.
As I understand, an executor of or adviser for the decease's estate is not allowed to make binding decision or enter into a contract prior to grant of probate. However, in another matter involving application for probate where I was advising the deceased landlord's solicitors their advice was I could continue to negotiate with the tenant to the point of reaching a formal decision but the formal decision could not be made until probate was granted.
What I'd like to know please is what is and is not allowed pending granting of probate concerning a business tenancy (lease). For example, in this case, the deceased landlord's spouse is continuing to demand and accept rent so presumably that is allowed and if so then why not any other covenants and conditions under a lease which predates the landlord's passing.
tia
Bnc
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Pending grant of probate
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Re: Pending grant of probate
I'm assuming you've already confirmed that this eventuality isn't covered in the lease itself.
When a tenant dies and his tenancy forms part of his estate it temporarily vests in the Public Trustee pending the grant of probate / letters of administration - section 9 of the Administration of Estates Act 1925.
The situation regarding the service of notices is governed by Part II of the Law of Property (Miscellaneous Provisions) Act 1994 - https://www.legislation.gov.uk/ukpga/1994/36/part/II
But this is a very technical area, where mistakes can prove expensive. You should seek specialist legal advice, and not try to go it alone.
When a tenant dies and his tenancy forms part of his estate it temporarily vests in the Public Trustee pending the grant of probate / letters of administration - section 9 of the Administration of Estates Act 1925.
The situation regarding the service of notices is governed by Part II of the Law of Property (Miscellaneous Provisions) Act 1994 - https://www.legislation.gov.uk/ukpga/1994/36/part/II
But this is a very technical area, where mistakes can prove expensive. You should seek specialist legal advice, and not try to go it alone.
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- Lemon Quarter
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Re: Pending grant of probate
Thank you.
The deceased's spouse is signing as executor, her solicitors have not queried the validity of service of notice.
My op was really to understand whether a stipulated time table in the lease has to be adhered to where probate has not been granted.
The deceased's spouse is signing as executor, her solicitors have not queried the validity of service of notice.
My op was really to understand whether a stipulated time table in the lease has to be adhered to where probate has not been granted.
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Re: Pending grant of probate
How is the property held?
If the deceased's spouse is demanding and receiving rent then this suggests the property has already passed to them under joint tenancy and so they can negotiate?
Paul
If the deceased's spouse is demanding and receiving rent then this suggests the property has already passed to them under joint tenancy and so they can negotiate?
Paul
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Re: Pending grant of probate
DrFfybes wrote:How is the property held?
If the deceased's spouse is demanding and receiving rent then this suggests the property has already passed to them under joint tenancy and so they can negotiate?
Paul
Or the widow is acting as executor in demanding and receiving the rent - and that income will fall into the deceased's estate pending probate?
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Re: Pending grant of probate
brightncheerful wrote:As I understand, an executor of or adviser for the decease's estate is not allowed to make binding decision or enter into a contract prior to grant of probate.
The powers of an executor derive from the will and not from the grant of probate. The grant is an administrative technicality needed only because some third parties, e.g. banks and the land registry, require the grant. It does not give the executor more powers; it just facilitates his exercising those powers in some cases.
But if there are no third parties insisting on seeing a grant and having good reason to do so, then I would take the view that the executor is free to negotiate rental contracts, for example. I certainly recall conducting viewings of a (residential) property that was under my executorship a few years ago, and I negotiated a lease. As it happened the rental never proceeded. But I was aware of no reason why it could not have done, even though the grant had not been obtained at that time. I considered that I already had that authority.
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