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Buachaill
Buachaill, Barrister
Category: UK Property Law
Satisfied Customers: 10183
Experience:  Barrister 17 years experience
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My father just passed away, he had a 15yr tenancy on s shop

Customer Question

Hi.
My father just passed away, he had a 15yr tenancy on his shop with 5.5 yrs left on it. Only after his death we have found out that my mum is a joint lease holder. She was unaware of this and doesnt remember signing any lease. The witness on the lease signing was a friend an associate of my fathers, we have spoke to him and he says categorically that he has never met my mother.
There is likely to be no estate, Our family home was in joint name with my mum, so that should pass to her. the business is just stock value.
Also my mother is almost bed-bound and totally unfit to work.
We want to wind the business up and get out of the lease, where do we stand?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Buachaill replied 1 year ago.

1. I regret to say that once your mother is named as joint leaseholder, then she is bound in law. I appreciate that the witness might state that he never met your mother, but that merely suggests that the witness did not do his job properly and signed the witness part without the person being there. It does not mean that your mother has a "get out" of the lease.

Expert:  Buachaill replied 1 year ago.

2. I would suggest you negotiate with the land lord and see if the landlord will release your mother from the lease. The landlord will have dealt with your late father and so might appreciate that all dealings were with your father. So it might be an opportunity for the landlord to re-let the premises at a higher rent to someone else. So the landlord might see a commercial opportunity here and release your mother and your father's estate from the lease.

Expert:  Buachaill replied 1 year ago.

3. Please RATE the answer as unless you Rate the answer, your Expert receives none of the money you have paid the website so there is no incentive to answer any further questions.

Customer: replied 1 year ago.
The fact remains that my mother didnt sign it, it was my late father, signing for her. Will she still be bound by this? How can she be bound by something she never committed to.
Expert:  Buachaill replied 1 year ago.

4. There is a good argument to make that your mother should obtain a "get out" from the lease and this is an argument that can be run in court should the landlord seek to enforce the lease. Personally, I believe it is unattractive to a judge. I know you want to obtain as asset-maximising solution to the current conundrum now that your father has died. However, be aware that your father's (bankrupt) estate will remain liable to the landlord for the rental payments should your mother obtain a "get-out".

Expert:  Buachaill replied 1 year ago.

5. The reality is that any alleged transfer of the half share of your father in the house to your mother is potentially liable to be set aside should you father's estate be bankrupt as a result of him failing to pay the lease payments. So the landlord will attack any transfer of the half share in the house to your mother.

Expert:  Buachaill replied 1 year ago.

6. It is a fundamental principle of insolvency law that a creditor of an estate (such as your mother) cannot take the benefit of your father's assets and resile from the burden of your father's debts when it comes to his estate. For this reason, I believe it will be an unattractive argument for your mother to get a "get out" on the lease. However, there IS NO problem with arguing it.

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