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Landlord & Tenant > General > Flashcards

General Flashcards

1
Q

What is the typical content of a lease?

A
  • Address
  • Term length
  • Rent charged and how it will be paid
  • Permitted use
  • Who is responsible for services and insurance, and any charged
  • Alienation
  • Yielding up
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2
Q

What elements of a lease impact value?

A
  • Protection under the 1954 Act
  • Lease length
  • Repair and obligations
  • Rent reviews
  • Break options
  • Alienation provisions
  • User clause
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3
Q

What did you learn in the session on the treatment of rent free at renewal?

A

HPUT Trustee No.1 Limited and HPUT Trustee No.2 Limited v Boots UK Limited 2022
- County courts have ruled both ways about whether there should be a RF period for fit out at renewal
- This case ruled in favour of the reality that Boots did not need a fitting out period

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4
Q

Key case law for your area of practice?

A
  1. Calderbank v Calderbank 1976 - Established Calderbank officer
  2. O’May v City of London Real Property Co 1983 - s35 - new terms should be based on current terms at LR
  3. S Frances v Cavendish Hotel 2018 - Must have genuine intention to use ground f
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5
Q

What did Calderbank v Calderbank 1975 establish?

A

Established the Calderbank offer - Court of appeal held that Mr Calderbank should pay costs as he had prolonged legal proceedings by not accepting Mrs Calderbanks earlier offer.

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6
Q

What did O’May v City of London Real Property Co 1983 establish?

A

Guidance on s35-
- New terms should be based on previous terms
- The party proposing new terms is to justify them
- They must be reasonable

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7
Q

What did S Franses Ltd v The Cavendish Hotel (London) Ltd [2018] establish?

A

Ground f can’t be used just to get the tenant out, as this would undermine security of tenure, must genuinely have intention to undertake works.

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8
Q

What are typical assumptions and disregards at rent review?

A

Assumptions
- Willing LL & T in an open market transaction
- Vacant possession
- The premises are fit out and ready for occupation
- The premises can be used for the use stated in the lease

Disregards
- Tenants occupation
- Goodwill
- Licensed tenants improvement works

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9
Q

What does case law suggest if no hypothetical term is stated in the review clause?

A

Basingstoke & Deane Borough Council v Host Group 1977 suggests if no term is stated, assume the residual

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10
Q

What should a calderbank offer be marked with?

A

Without prejudice save as to costs

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11
Q

What must a calderbank offer not be marked with?

A

Without prejudice /subject to contract

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12
Q

How long is a calderbank normally open for?

A

21 days

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13
Q

How much to apply to RICS ADR?

A

£425

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14
Q

Key differences between an independent expert and arbitrator?

A
  1. Evidence - Arbitrator acts only on evidence and can order disclosure, IE makes own investigations and uses their own expertise but can’t order disclosure
  2. Appeal - Arbitrator can be appealed on a point of law or jurisdiction and can’t be sued for negligence, IE can’t be appealed but can be sued
  3. Governance - Arbitrator governed by the 1996 Arbitration Act, IE governed by the terms of the lease
  4. Outcome - Arbitrator award, IE determination
  5. Costs - Arbitrator has power over all costs, IE only has power over their own costs
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15
Q

How can a rent review be documented?

A

RRM, acceptance of a Calderbank or open letter, IE determination, arbitrators award

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16
Q

What does a RRM need to include?

A
  1. Name and address of the landlord and tenant
  2. The property
  3. Date of the lease and the rent review
  4. New rent
  5. Signature and date of both parties
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17
Q

What are 3rd party proceedings for LR?

A

County Court or PACT

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18
Q

What governs county court proceedings?

A

Civil Procedure Rules 1998

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19
Q

When would you use county court v PACT?

A

PACT for unopposed renewals, court otherwise

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20
Q

What is a part 36 offer?

A

Calderbank equivalent for LRs, open for 21 days after which it can be accepted or withdrawn

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21
Q

What is PACT?

A

Professional Arbitration Under Court Terms - alternative dispute resolution

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22
Q

When was PACT introduced?

A

1997

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23
Q

What are the advantages of PACT?

A
  1. Faster
  2. Avoids a full court hearing
  3. Greater flexibility and control
  4. Less expensive
  5. Decision by surveyor not a judge
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24
Q

What are the possible fee bases for L&T work?

A

% of new rent
% of saving from quoting rent
Fixed
Hourly
Incentive

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25
Q

What are the key differences between a lease and a licence?

A
  1. Lease is an interest in land, license is permission to make an act lawful
  2. Lease can be assigned, license is personal
  3. A lease can’t usually be revoked until break or expiry, licenses can usually be revoked at any time

Lease = exclusive occupation, fixed term of duration, consideration

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26
Q

What are the 4 requirements for a lease?

A
  1. Exclusive occupation
  2. Payment of rent
  3. Duration of a specified term
  4. If more than 3 years, needs to be in writing and as a deed
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27
Q

What was the key case in lease v licence and what was the outcome?

A

Street v Mountford 1985

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28
Q

What is a tenancy at will?

A

Form of licence, allows occupation for an unspecified period of time during which landlord can evict at any time
Used for allowing a tenant early entry to fit out or whilst agreeing a new contracted out tenancy.

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29
Q

What is wayleave?

A

Temporary right receiving annual payment
Personal, can’t be automatically transferred
Not compulsorily registered

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30
Q

When might you use a tenancy at will?

A

Used for allowing a tenant early entry to fit out or whilst agreeing a new contracted out tenancy.

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31
Q

When might you use a wayleave?

A

E.g. allowing an electricity company to install and maintain equipment

32
Q

What is an easement?

A

Permanent right with capital payment
Can be registered on land reg
Right over someone else’s land
e.g. right of way

33
Q

When might you use an easement?

A

To allow access (not public right of way)

34
Q

What is a prescriptive easement?

A

Right gained by continuous and uninterrupted use of land over a proven period of 20 + years.

35
Q

What is a permissive right?

A

Granted by landowner to allow access over land, not public rights of way, usually signposted as a permissive right

36
Q

What is adverse possession?

A

Process by which someone becomes legal owner of the land through possession of the land
Registered land - 12 years of possession pre 2003 (land registration act) or 10 years post
Non-registered - 12 years

37
Q

What happened in United Scientific Holdings v Burnley Borough Council 1977?

A

Time is of the essence case -
Landlord missed the notice dates in the lease but was still allowed rent review, court ruled that time is not of the essence unless indicated to the contrary.

38
Q

When is post dated evidence admissible?

A

If it supports circumstances which could have been known about at the valuation date.

39
Q

What is the hierarchy of evidence?

A

Open Market Letting
Lease renewals
Rent reviews
Independent expert
Arbitrator
1954 court determinations
Hearsay
Sale and leasebacks
Surrender and renewal
Inter-company arrangements

40
Q

What is s23?

A

Protection under the Act

41
Q

Under s23, what are the 6 elements required for protection by the act?

A
  1. Tenancy
  2. Business purposes
  3. Occupation of the premises by the tenant
  4. Occupation over 6 months
  5. Not excluded
  6. Competent landlord (freeholder or superior tenant with 14 months to run)
42
Q

What is a competent landlord?

A

Freeholder or superior tenant with 14 months to run

43
Q

What is s24?

A

Tenancy can only be ended by service of notices, otherwise tenant is holding over. The tenancy can’t end through the effluxion of time.

44
Q

What is s25?

A

Landlord’s notice - can be hostile or non-hostile

45
Q

What are the requirements for an s25 notice?

A
  • Competent landlord serves on tenant
  • Must relate to the whole property occupied by the tenant
  • State the date for the termination of the tenancy
  • Be in the prescribed form, and inform the tenant of their rights
  • If non-hostile, state proposed terms
  • If hostile, state grounds of opposition
46
Q

What is the timeframe for a s25 notice?

A

Served 6-12 months before specified termination date

47
Q

What is s26?

A

Tenant notice for a new tenancy

48
Q

What must a s25 notice include?

A
  • Name and address of both parties
  • Property address
  • Notice of the date to end tenancy
  • Confirmation of whether a new lease is opposed
  • Confirmation of response required
  • Proposed terms or grounds of opposition
  • Recommendation to seek professional advice
49
Q

What are the timeframes for a s26 notice?

A

Served 6-12 months before specified termination date
Landlord must counter within 2 months

50
Q

What is a s27?

A

Tenant notice to quit
Served by the tenant any time if they want to leave after the expiry date
3 months notice
If tenant moves out before lease expiry, no notice needs to be served

51
Q

What is s30?

A

Grounds of opposition to a new lease

52
Q

Under s30, what are the 7 grounds of opposition?

A

a - breach of repair covenant
b - persistent delay in paying rent
c - other substantial breach
d - suitable alternative accommodation
e - uneconomic sub-division
f - demolition or reconstruction
g - owner occupation

53
Q

Under s30, which grounds are compensatory?

A

e - uneconomic sub-division
f - demolition or reconstruction
g - owner occupation
‘No fault’

54
Q

Under s30, which grounds are discretionary?

A

a - breach of repair covenant
b - persistent delay in paying rent
c - other substantial breach
d - suitable alternative accommodation
e - uneconomic sub-division

55
Q

Under s30, which grounds are mandatory?

A

f - demolition or reconstruction
g - owner occupation

56
Q

What must the LL prove for ground f?

A

Firm intention, funding and planning, substantial work - necessity to gain VP, ability to redevelop

57
Q

What are the requirements for ground g?

A

Must have owned for 5 years, prove intention to occupy and/or run a business

58
Q

What happened in Bettys Café Ltd v Philip Furnishing Stores 1959?

A

Court held that the underlying grounds for a-c under s30 must be established at the date of the hearing

59
Q

What are s 32-35?

A

Terms of the new lease

60
Q

What’s the max term a court can grant? Since when?

A

Since 2003, courts can grant a max term of 15 years

61
Q

What is the valuation date for a lease renewal?

A

Earliest date at which the notice could have terminated the lease
If the renewal goes to court, it’s 3 months and 2 weeks from the date of the hearing

62
Q

What assumptions and disregards are considered in calculation of MR at LR?

A

Assumptions:
- Terms of the new tenancy
- Willing LL & T
- Let with VP
- Effect on rent of the 1995 L&T Covenants Act
Disregards:
- Effect on rent of tenant’s occupation
- Goodwill attached to the premises due to tenant’s business
- Tenant improvement works
- Impact of licenses at licensed premises

63
Q

Which case set out the principles for varying lease terms?

A

O’May v City of London Real Property Co 1982

64
Q

What are the 4 key principles for varying lease terms set out by O’May v City of London Real Property Co 1982?

A
  • LL must have a valid reason on estate management grounds
  • change must be compensated in rent
  • must not materially impact security of tenure
  • mist be reasonable
65
Q

What is s 24a?

A

Interim rent

66
Q

When can parties apply for interim rent?

A

Earliest: Date of the s25 or s26 notice
Latest: 6ms after termination of the tenancy

67
Q

Under s24a, what is the ‘appropriate date’?

A

The date from which interim rent is paid

68
Q

Can interim rent be awarded if notices haven’t been served?

A

No

69
Q

What is s40?

A

Information request

70
Q

Why would you serve a s40?

A

To check who the competent landlord or tenant with statutory protection is

71
Q

What is the timeframe to respond to an s40?

A

1 month

72
Q

What is s44?

A

Definition of a competent LL - freeholder or leaseholder with 14 months left to run

73
Q

Which section of the Act is contracting out?

A

s38a

74
Q

How do you contract out?

A

LL serves a health warning, tenant must then make a declaration in response - this is simple (more than 14 days to consider) or statutory (less than 14 days, must be made before an independent solicitor)

75
Q

What should a LL do when a contracted out tenancy expires?

A

Not accept rent, grant a tenancy at will if intending to renew lease

76
Q

What are the methods of terminating a lease?

A
  • Forfeiture
  • Surrender and negotiation
  • Merger
  • Disclaimer (insolvency)
  • Break clause
  • Lease expiry and the service of notices

Landlord & Tenant (1 decks)

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