Lease terminates before headlease

[victoriana]

I am writing this post on behalf of a friend who is in the process of selling her flat. The buyers' solicitor has identified the lease expires before the headlease. The solicitor says that this has resulted in the headlease being assigned to the lessee. The buyer's solicitor recommends amending the lease so that it expires on or after the same day as the headlease to restore the headlease to the headlessor. The solicitor who originally sold my friend the flat says that there is no need to make an amendment as the headlease has not been assigned and her current solicitor says he is not sure what the remedy is as he has never come across this problem before. Can anyone on here advise on what the solution might be? Thank you.

[atticus]

When a lease expires, the interest of the lessee comes to an end.

It is to be expected that a sub-lease expires before the headlease does; it would be very odd if it were the other way round.

[victoriana]

Is the answer to amend the lease so that it expires after the headlease? If the lease was drawn up to expire before the headlease, is the lease invalid? Can a void lease be amended?

[atticus]

No.

The headlessee cannot possibly grant a sublease for a longer term than he has under his head lease.

I am not seeing the problem. I wonder if you are describing it accurately ... Do you have lease and headlease the right way round?

[victoriana]

You are correct. I have got the details the wrong way round. The headlease expires before the lease.

[atticus]

either lease or headlease should be varied.

[dls]

This really must be changed. It is a fundamental defect. I really do not know the effect of what has been done. There is a possibility that there is no underlease.
The headlease cannot be extended without the agreement of the freeholder. An approach to him will generate a broad smile and welcoming wallet.

The solicitor says that this has resulted in the headlease being assigned to the lessee.

Very possibly.

The solicitor who allowed your friend to get into this mess needs to be explaining (through his insurers) how this was achieved.

How did the Land Register deal with this?

[victoriana]

If the headlease cannot be amended without going to the freeholder, then is the solution to amend the under lease? But I don't understand how an under lease can be amended. If the headlease has been assigned over, then surely the under lease does not exist. Whilst it was drawn up, it could never have come into existance due to the date discrepancy. Can my friend agree to surrender the headlease back to the 'head lessor"?

[theycantdothat]

Very possibly.

Definitely.

"In accordance with a very old and established rule, where a lessee, by a document in the form of a sub-lease, divests himself of everything that he has got (which he must necessarily do if he is transferring to his so-called sub-lessee an estate as great as, or purporting to be greater than, his own) he from that moment is a stranger to the land, in the sense that the relationship of landlord and tenant, in respect of tenure, cannot any longer exist between him and the so called sub-lessee."

Milmo -v- Carreras [1946] KB 306

[atticus]

If the headlease cannot be amended without going to the freeholder, then is the solution to amend the under lease?

Yep. Deed of variation.

Why should your friend even consider a surrender?