9.1 Contents of a Lease: Repair and Insurance Flashcards
What case shows SP is a possible remedy for breach of repair covenant
Rainbow Estates
Limit on CRAR
6 years arrears
What is ‘The Code’ short for
The Code for Leasing Business Premises
What can T do if 146 notice served
Apply for relief
What to check if T has O to redecorate
No veto over colours + no O if already done in last 12 months
Two kinds of security L may get from T
Deposit and guarantee from 3rd
Before when do leases of more than 21 years have to be reg
Prior to 13 Oct 2003
Why is an SP order always unlikely
Due to constant supervision
When are damages for breach of repair covenant under 18 LTA ‘27 not available
If premises to be pulled down or structurally altered after Lease
What way can L get around s.18 LTA restrictions
By using Jervis v Harris clause to enter + repair himself
Where are the uses of deposit by L set out
In deposit deed
1(1) LP(R)A requires what
146 special notice if forfeiture for breach of repair covenant + lease 7+ w/ 3 left
In what kinds of buildings is it important that latent/inherent defects are not the responsibility of T
Newer properties as not yet apparent
Per what statute must 146 notice be ‘special’ for forfeiture due to breach of repair covenant
LP(R)A s. 1(1)
What must be considered if lease of only part (in terms of access + costs)
Need access to common areas + pay service charge between Ts
When is there no need to serve a special s.144 notice despite L forfeitting the lease for breach of repair covenant
Either lease does not have 3 years left, or lease is for less than 7 years (under LP(R)A)
How is insurance premium recouped by L
Through insurance rent from Ts
What does the ‘demise’ refer to
Extent of the property
When is a Schedule of Condition likely
If property is older
When should the cost of repairs carried out by L be recoverable from T
Within 14 days of written demand
When does forfeiture NOT require 146 LPA ‘25 notice
If for non-payment of rent
Jervis v Harris clause is what
Self-help clause
What clause must L negotiate in order to have right of forfeiture
Forfeiture clause
What should T not be liable for in respect of damage caused by IRs
To repair or replace anything damaged by IRs
How many references to ‘Insured Risk’ in repair clause and where
Twice - exclude repair O if caused by Insured Risk, and exclude replacing F&F if damage caused by IR
What replaces TR1 in agreeing a lease
The lease itself
What is an FRI lease
Full repairing and insuring lease
What must 146 notice set out
Breach, require remedy + T to pay compensation
What should the duty to replace items exclude liability for
Those damaged by an IR
When is an injunction unlikely to be awarded
If damages are appropriate and sufficient
What is the process for forfeiture for breach of repair covenant if covered by LP(R)A
Serve special 146 notice
146(11) LPA ‘25
No 146 notice for forfeiture in non-payment of rent
What should T do if L reserves right to re-enter premises (amending clause)
Make it upon reasonable notice during normal business hours unless it is an emergency
When will rent suspension clause NOT apply
If insurance policy made void due to act/omission of T
If lease clause says replace all items w/ identical, what should it change to for T
Only if beyond economic repair, and only substantially similar
What should any covenant for T to yield up be to
Satisfaction of L’s surveyor acting reasonably
What does L usually get insurance for if there is a rent suspension clause
Insurance for that period
What must a 146 ‘special’ notice state
T’s right to serve counter-notice within 28 days
When does CRAR apply
7 clear days’ notice to T + at least 7 days’ rent due
Three typical IRs
Fire, water pipe bursts and riot
What happens if T serves counter notice to 146 special notic
L must get leave of court to continue
Rainbow Estates shows what
Specific performance for repair obligation possible, but only if unusual, e.g. no Jervis v Harris and no forfeiture clause
Why are insurance rent and service charge included as Rents
To take advantage of remedies for non-payment
SP repair case
Rainbow Estates
What is the LR priority search for part of the property
OS2
Why is recovery of damages for unpaid rent limited to 6 years
Claimed as debt, so capped under LA ‘80
What defects should be excluded for T
Latent and inherent defects
What Code provides tenant-friendly guidelines for leases
The Code for Leasing Business Premises
What is the benefit to L of FRI leas
Clear income stream
What guideline supports ‘maintain’ in repair
Code for Leasing Business Premises
If property has benefit of RoW, what do you advise T on
Adequacy
What is the limit on damages for non-payment of rent
6 year period prior to Ps, claimed as debt
Why is mortgagee consent needed if on OC
Bc of Restriction on OC
How is SDLT calculated for leases
Based on term of lease, rent and any premium paid
s.18 LTA ‘27 applies to what
Damages for breach of repair covenant
What doc is used if delay between agreeing terms of lease + granting leas
Agreement for lease
Rainbow Estates key
SP repair
Rainbow Estates ratio
SP is possible for breach of repair covenant
In what case may SP be likely for breach of repair covenant
Exceptional - no Jervis nor forfeiture clause
What if lease says rent is still payable in case of damage by IR
Replace w/ rent suspension clause of all rents if unfit for occupation and use
When does CRAR not apply
if lease forfeited
Jervis v Harris = what
Self-help clause
What if lease says no O to apply insurance monies to reinstate property after damage by IR
Replace w/ O to use monies as such + L to make up for shortfall
Five possible remedies for breach of rent clause
Forfeiture, damages, CRAR, deposit and guarantor
What two things does L look at for covenant strength of prospective T
Solvent and reputable (for covenants)
What is CRAR
Seizure of goods
If lease clause says put and keep in repair, change to what for T
Maintain or use Schedule of Condition
What four options are always available as remedy
Forfeiture, damages, deposit or pursue guarantor
What should T ask for a copy of prior to grant, if insured
Copy of insurance policy
When does Iqbal apply
Alteration under 19(2) LTA ‘27 - reasonable to reject if serious justified structural concerns
Why are newly incorporated companies as tenants risky
No financial history
When is rent payable on if four equal annual instalments
Quarter Days
What shows no 146 notice needed for forfeiture in case of non-payment of rent
146(11) LPA
LP(R)A s.1(2) requires what
146 special notice if damages for breach of repair covenant + lease 7+ w/ 3 left
Statute on damages for breach of repair covenant
s.18 LTA ‘27
What are damages for breach of repair covenant limited to under s.18 LTA ‘27
Reduction in L’s freehold interest
What three things does L look for
FRI lease, covenant strength and security
Six possible remedies for breach of repair covenant
Forfeiture, damages, self-help, SP, deposit or pursue guarantor
If L repairs damage himself, what can L claim
Reasonable and proper costs as debt
Five things to check on OC
Owner = prospective landlord, class of title, mortgage, burdens and benefits
What should the duty to maintain the property in repair exclude liability for
Repair caused by Insured Risks
From when do leases of more than 7 years have to be reg
Post 13 Oct 2003
What do the LRA require in leases of registrable properties
Prescribed Lease Clauses
What clause must lease have for L to enter and carry out repairs himself
Jervis v Harris clause
