Lease terminates before headlease

[atticus]

Site = Sight. (Re counsel's opinion)

But take care before disclosing such a thing, as it is likely also to highlight areas of uncertainty. Counsel's opinions rarely say the case is a slam dunk, because they rarely are.

[theycantdothat]

Site = Sight. (Re counsel's opinion)

Oops! Amazing how these things happen when typing but not when writing longhand. I always used to wonder how secretaries managed it.

But take care before disclosing such a thing, as it is likely also to highlight areas of uncertainty. Counsel's opinions rarely say the case is a slam dunk, because they rarely are.

Point taken.

[victoriana]

My friend received a phone call on Friday from another solicitor of the firm in response to the complaint. With reference to Emmett in Title, he said that it was not in the interests of either party for an assignment to take place and that as there was no evidence of any intention to assign part of the headlease, then a court would presume that an assignment was not intended and therefore had not taken place. Is it possible that he might right on this point?

[theycantdothat]

Is it possible that he might right on this point?

No.

Refer him to Milmo -v- Carreras [1946] KB 306 in which it was said:

"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."

You can also quote from Megarry & Wade where the learned authors say:

"Since the distinction between an assignment and a sub-lease is one of substance and not of form, it follows that if the tenant disposes of the whole residue of his estate, the transaction must operate as an assignment even though the parties intended it to operate as a sub-lease." (My italics)

[victoriana]

After making enquiries, I have just discovered that my friend's solicitor who oversaw the sale did not have a practice licence at the time all the contracts were completed. The lapse covers a six month period. Should I be worried by this? My instinct tells me I should.