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ACP > 5.1 Commercial Lease: T's Os, L's Os, Remedies + Break Clause > Flashcards

5.1 Commercial Lease: T's Os, L's Os, Remedies + Break Clause Flashcards

1
Q

What O should T have to decorate externally

A

Only every 3 (try to negotiate up to 5 in line with internal)

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2
Q

Who should NOT determine reinstatement value for insurance

A

L

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3
Q

When should debt of repair from self-help clause be recoverable as debt (acting for T)

A

Within 14 days of written demand

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4
Q

What certificate is signed for Service Charge Costs

A

Service Charge Certificate

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5
Q

What two things should be excluded from repair Os in new build

A

Latent/Inherent Defects and anything covered under DLP of BC

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6
Q

How can you protect T in service charge regarding their share of the costs to be paid

A

Reasonable and fair proportion, reasonably determined by L, with a cap

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7
Q

When should a rent suspension clause for damage by IR be triggered

A

If Property unfit for use/occupation, or Common Parts badly damaged so Property inaccessible/unusable

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8
Q

If T is to carry out alterations, what should S check which T might be able to claim

A

Position on compensation under Part 1 LTA ‘27

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9
Q

Should L be able to add other risks to ‘Insured Risks’?

A

Yes, acting reasonably - ensures only insuring against relevant risks

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10
Q

What is it normal for L to be able to charge if T does not comply w/ notice to remove all chattels + alterations from premises

A

Reasonable proportion of Annual Rent as debt due within 7 days of written demand

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11
Q

What scenarios should be provided for in the case of paying provisional service charge

A

Provide for what happens if overpaid or underpaid

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12
Q

What covenant should T argue for in terms of alterations

A

FQC + no unreasonable delay

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13
Q

Is the Code for Leasing Business Premises legally binding?

A

No - only voluntary

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14
Q

What standard should L use to carry out Services

A

Good standard

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15
Q

Why limit insurance for reinstatement to cost, not value

A

Valuing may not be same as actual cost

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16
Q

What can O to repair in new building be (wording cannot be used for old)

A

Can be ‘put and keep’

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17
Q

When should Break Notice NOT have effect

A

Material breaches only

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18
Q

For what kind of building should T’s O to repair be by ref to Schedule of Condition

A

Old building

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19
Q

How can you protect T in service charge regarding provisional SC

A

Should NOT be considered ‘Rent’

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20
Q

Why should T not pay Insurance Rent based on gross cost of premium before discount

A

paying more than fair proportion - T should benefit from discount

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21
Q

How can L require payment of Rent by alternative method - change drafting so it says what

A

If reasonable + w/ written notice

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22
Q

Are costs on indemnity basis acceptable?

A

No

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23
Q

How should amount of Insurance Rent T should pay be worked out?

A

Reasonable cost of premium after discount/commission

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24
Q

When will T have to pay Default Interest Rate

A

if late paying rent

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25
Q

The period for which L is to insure himself for rent suspension must match what

A

Period of rent suspension for T

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26
Q

What endeavours will T settle for L to use for services

A

All reasonable if best not agreed

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27
Q

What should definition of ‘Property’ and ‘Building’ make clear

A

What is within T’s Demise and what is retained by L

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28
Q

What should you ensure break clause is not, in terms of who can exercise

A

Not personal to e.g. T as defined

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29
Q

What should happen if underpaid through provisional service charge

A

Payable within X days of written demand

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30
Q

What is the general definition of an Uninsured Risk

A

Cover not generally available for property of this type, or unreasonable to expect L to get in the circumstances

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31
Q

What two specific clauses should L have for remedies

A

Forfeiture/re-entry, and self-help

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32
Q

When should T’s O to repair only be to maintain property

A

If old building

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33
Q

When is VAT payable on ‘Rent’

A

If L has opted to tax

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34
Q

When is it acceptable for L to charge T through Service Charge the cost of renewing articles

A

If beyond economic repair

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35
Q

What kind of damage should T never have O to repair

A

Anything caused by (Un)Insured Risk, unless act of U(T) has vitiated policy

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36
Q

Should T agree to contribute to reserve fund under Service Charge

A

No

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37
Q

Change any provisions for entry to include what

A

Reasonable times w/ reasonable notice unless emergency

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38
Q

What should happen if lease not reinstated by end of the rent suspension period (2 ways)

A

Terminate immediately upon expiry w/ notice, or provide for notice period within rent suspension period

39
Q

Why will L want to include rent and service charge in annual rent

A

To use forfeiture w/o needing 146 notice and also CRAR

40
Q

Example of services which should be excluded from Service Charge as excluded as TO elsewhere

A

Repairing Inherent Defects or contamination

41
Q

What two risks should ‘Insured Risks’ cover

A

Flooding and damage caused by Terrorism as defined in the Terrorism Act 2000

42
Q

Change ref to ‘immediately’ too?

A

ASAP

43
Q

If L is able to require T w/ notice to remove all chattels and alterations, what should you draft in to restrict L’s right

A

Must be reasonable for him to so require

44
Q

Should services by L be conditional on T paying service charge?

A

No

45
Q

What is it normal for T to be able to install/remove w/o L’s consent

A

Internal demountable partitioning, as long as making good damage caused

46
Q

How should L exercise any discretion under Services

A

In the interests of good estate management

47
Q

What should T’s O to replace articles be limited to

A

Similar articles if beyond economic repair

48
Q

If L has rejected T’s rent, what interest should T pay

A

Normal interest rate, not Default

49
Q

If L is able to insure against other risks, what connecting word should be used to ADD this discretion to the list

A

‘And’, not ‘or’

50
Q

Case on self-help

A

Jervis v Harris

51
Q

When might T be able to claim compensation for alterations

A

If statutory procedure followed + no O to reinstate

52
Q

What is self-help

A

L can recover cost of repairing when T in breach as debt

53
Q

Jervis v Harris ratio

A

Self-help

54
Q

What should happen at RR regarding T’s alterations

A

Disregard

55
Q

What express clause should be included in break clause

A

Refund proportion of rent + VAT overpaid to next Rent Payment Date

56
Q

Should provision of services be subject to L not being obliged to apply insurance monies to damage caused by IR?

A

No

57
Q

How to work out what is T’s fair proportion of Insurance Rent

A

By metre squarage of premises

58
Q

Why is it important break clause isn’t personal

A

Harder to assign lease

59
Q

What should happen if overpaid through provisional service charge

A

Credit to next payment

60
Q

If L is able to decide to change Services, what may T ask L to do

A

Require T’s consent (but may be refused)

61
Q

M&S v BNP showed what

A

Need express clause to recover overpaid rent when exercising break clause

62
Q

Example of cap on any single service, e.g. MA fees

A

10% of Service Costs for single service

63
Q

If lease states T to assume VL for contractors, do what?

A

Limit to (U)T only to reduce exposure to risk

64
Q

Should T agree to comply w/ recommendations of service suppliers?

A

No - not statutory O

65
Q

Insurance for reinstatement should be limited to what

A

Reinstatement COST, not value

66
Q

What statutory O should T explicitly exclude any liability for

A

Liability for remedying contamination not caused by T

67
Q

What might the effect be if one side takes advantage of other side’s mistake

A

Rectification or agreement being a nullity

68
Q

Does L HAVE to insure property?

A

Yes - should be obliged to

69
Q

M&S v BNP ratio

A

Express rent refund

70
Q

How can you protect T in service charge regarding excluding L’s ability to recover VAT

A

Exclude VAT if capable of recovery, not just if recovered

71
Q

What should lease state if L does not recover enough money from insurer to repair damage by IR

A

Cannot be recovered as Service Charge

72
Q

What should T obtain if new build

A

CWs from Professional Team

73
Q

If consent/approval to be obtained from other party, what amendment should be made

A

Not to be unreasonably withheld or delayed

74
Q

Who draws up lease from Hot

A

L’s S

75
Q

What should Default Interest Rate be

A

4/5% above Interest Rate and no more

76
Q

Who should sign Service Charge Certificate

A

Independent accountants/auditors who are suitably qualified

77
Q

If there is an undertaking to do a specific endeavour, what should it say

A

Use reasonable endeavours

78
Q

Example of cost which L is entitled to be reimbursed from another source, so should not claim from Service Charge

A

Payments from insurers for damage by Insured Risks

79
Q

What can L’s O to insure the property be subject to

A

Insurers’ exclusions

80
Q

Change any ref to ‘cost’ too?

A

Reasonable and proper costs, cap to X figure

81
Q

What defects will need to be defined for repair Os in new build

A

Latent and Inherent Defects

82
Q

Change ‘discretion’ to?

A

Reasonable discretion

83
Q

What endeavours should T argue for L to use for Services

A

Best

84
Q

Change ref to ‘on demand’ too?

A

Within X days of receipt of written demand

85
Q

Why argue that consent to alter should also not be unreasonably delayed - why is it important

A

S.1 LTA ‘88 does not imply

86
Q

Why can’t one side take advantage of other side’s mistake

A

Against Principle 2

87
Q

Express rent refund case

A

M&S v BNP

88
Q

What services should be excluded from Service Costs

A

Any services T will not benefit from, services T has excluded as TO elsewhere, or costs L is entitled to reimbursement from other source

89
Q

What should forfeiture not affect

A

Rights/remedies in event of breach of either party

90
Q

What does the Code state about damage by Uninsured Risk + termination

A

T should have right to terminate unless L willing to rebuild

91
Q

When should there be no O for T to decorate again

A

If already decorated in 24-month period, and not before end of term if SoT under ‘54 Act

92
Q

What O should T have to decorate internally

A

Only every 5 years

93
Q

If a decision of L might affect T, what should L act in

A

Interests of good estate management

ACP (12 decks)

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