Enforceability Of Leasehold Covenants Flashcards
Date for old leases
Before 1 Jan 1996
Date for new leases
On or after 1 Jan 1996
Old lease - does T and L remain liable for breach of covenant by successors
Yes
Old lease - does burden and benefit of covenants run to successors (eg assignee or new LL)
Yes, if touch and concern land
Original L and T remain liable
New leases - is original tenant liable after assignment?
No - automatic release from all obligations
New leases - is original landlord still liable for breaches of their successor
Yes - there is no automatic release from obligations. Must apply to tenant for release - if tenant refuses then can apply to court
New leases - will landlord remain liable for breaches that occured before sale of reversion?
Yes
New leases - does the burden and benefit of covenants pass to successor?
Yes - automatic transmission
Exceptions to automatic transmission of burden and benefit?
If covenant is expressed to be personal
If assignment is excluded
What is an authorised guarantee agreement
Outgoing T acts as guarantor for new incoming tenant to comply with covenants
Can be required by LL as a condition to assignment
This means that if new tenant breaches, LL could sue former tenant for breach of AGA (covers damages only)
How can outgoing tenant giving an AGA to LL protect their self?
Require indemnity covenant from assignee to perform all obligations.
If they do not and original T is sued, they can sue assignee for breach of indemnity covenant
Relationship between LL and subtenant in sublease?
No direct relationship - LL cannot enforce position covenants against subtenant
But s3(5) LTA allows restrictive covenants to be enforced against subtenant
How can LL enforce positive covenants against subtenant?
Include provision in sublease whereby subtenant covenants to observe and perform covenants in sublease
