Good afternoon
I believe I've come to you in the past with similar queries, however, we are doing a remortgage application over title NK412762, alongside which we are doing a deed of variation for the rentcharges clause as mentioned at C3 of the title. The variation in question is as follows, taken from the Deed:
3.1 The Transfer is to be read and interpreted as if clause 6.3 is deleted and replaced with the following:
6.3 In relation to the Management Company’s rights pursuant to clauses 6.1 and 6.2
(a) the Management Company shall not be entitled to exercise such rights of re-entry unless they have served prior notice of any breach of the Transferee’s covenants in this Transfer on the Transferee and any mortgagee whose charge over the Property is registered or in the course of registration at the Land Registry and such breach shall not have been remedied within two months thereof.
(b) that in the event that further action is taken after the mortgagee has been notified pursuant to clause 6.3(a) the Management Company should notify such mortgagee of such further action; and
(c) that in the event that a lease is granted pursuant to section 121(4) of the Law of Property Act 1925 upon payment of all arrears, costs of collecting arrears, all legal costs and expenses including court costs and the costs
of creating and surrendering the lease, the Management Company will surrender such a lease without premium. Any costs and expenses occasioned by the non-payment of the Rentcharge incurred by the Management Company under this clause must be ‘reasonable’.”
From doing these prior, we have been of the understanding that the parties that should be involved with this Deed of Variation are the proprietors, the Management Company and the original Transferors, as this is a clause brought up within the original Transfer dated 25th August 2011. However, the management company and original Transferors are insisting that only the proprietor and management company need to be party to this Deed. We did point them in the direction of Practice Guide 68, which we believe confirms that an original transferor (or original party) must take part in a deed of variation or amendment, but they are still adamant that the original transferor do not need to be party to this.
Could you please confirm, given the above, whether or not the original Transferor should be party to this Deed? If you require any further information, please advise.
Thank you
