QUESTION
We wonder if you could advise us on the following. We have a situation of a lessee who is now permanently in a care home with the power of attorney vested in three people, his son, his daughter and a lifelong friend. The son and daughter both live in the USA and intend to rent out the flat.
The lease is ambiguous with regard to sub-letting stating only:
“Not to assign underlet or part with the possession of part only of the said flat”.
Regardless of this, a number of flats are already sub-let.
We are wondering if the POA gives them the right to sub-let the flat. Any advice on the matter would be much appreciated.
ANSWER
Many thanks for your question. In replying, I have taken advice from a colleague in the probate team of my firm.
By way of background, if the donor has granted a Lasting Power of Attorney in respect of their property and financial affairs, which has been duly registered at the Office of the Public Guardian, their attorney will be authorised to make any decisions in respect of the property or finances that the donor would otherwise be able to make herself. This is subject to any contrary instructions or preferences in the document.
Depending on how the attorneys are appointed to act within the document, all three will need to be party to the agreement to sublet (if it is a joint appointment) or, alternatively, only one or two of them need to be party (if it is a joint and several appointment). If the donor retains the capacity to make decisions regarding her own affairs, but is physically unable to deal with them, the attorneys are able to proceed with the agreement to sublet - provided that they do so with her full knowledge and consent.
If the donor has granted an Enduring Power of Attorney, her attorney should only be able to enter into the agreement to sublet on her behalf if the document has been registered at the Office of the Public Guardian. Although an Enduring Power of Attorney can be used by the attorneys without any formal Court registration in some circumstances, if they have reason to believe that the donor has become - or is becoming - incapable of managing her own property or financial decisions, they should ensure that the document is fully registered before making any further arrangements in respect of the property.
In all cases, the attorneys are obliged to act in the donor’s best interests. Accordingly, any sublet of the flat can only go ahead if it is in her interest for it to do so.
In dealing then with the clause itself, I am not sure I agree that the lease is ambiguous with regards to subletting. The clause you have cited restricts subletting of part of the flat. If it is the intention to sublet the whole flat (which I assume it is) then, from the information you provided, there does not appear to be a restriction against this.
Cassandra Zanelli, solicitor and partner at PM Legal Services, assisted by Colleen Dooney, senior associate at hlw Keeble Hawson LLP
