Kiosk 5, Hunstanton Flashcards
Tell me about the situation at the Kiosk?
Tenant had consistently breached the permitted user in the lease by trading outside the main trading season for each of the last 4 years. The tenant was also found to be disposing of waste down a surface water drain.
I recommended my client serve a hostile section 25 notice, however the T’s solicitor has disputed the alleged breaches and requested a new lease.
What was the reasoning for your advice to serve a section 25 notice?
The tenant was consistently in breach of the permitted trading dates in the lease and despite a S146 notice and multiple reminders to comply with the lease terms, the tenant still continued to breach.
Why did you advise your client that they should consider a new lease?
I advised my client to consider a new lease with a landlords break option because the courts would have discretion over whether the breaches were enough to warrant refusal of a new tenancy.
I was concerned that the evidence was fragmented, so there was a risk as to whether my client had done enough to enforce the covenants during the lease.
An unprotected lease with a landlords break option would have provided my client with an easy mechanism to terminate the lease if the tenant was to breach again in a new lease, without the risk of going to court.
What recent case law did you refer to in your advice?
Youseffi vs Mussellwhite (2014) where the tenant had been in breach of the user covenant and the landlord successfully opposed renewal under ground C after the court used its discretion and ruled that it would have been unfair to burden the landlord with a new landlord and tenant relationship.
How do you make ground C stick?
At the courts discretion and the breach must be substantial.
You must show you have made reasonable attempts to enforce the lease covenants on the tenant.
Why did you advise the court should consider the seasonal nature of the lease?
The tenants breaches mainly related to trading outside the permitted trading dates, so there would naturally be a period of time from April - October where she would not be in breach. Although the breaches were historic, a clear pattern could be established where the tenant was in breach for each of the last 4 years.
Why did you not want the break clause to be conditional?
I was initially happy to make the break option conditional on a tenants breach of a material covenant, however I obtained advice from a solicitor who informed the LL would be required to serve a S146 notice to provide the tenant with an opportunity to put the breach right, in addition to the break notice, which would have rendered the break option meaningless.
What was included in your witness statement?
Main facts surrounding the tenants breaches and also a statement of truth.
Do you know the difference between an expert witness and an independent expert?
An expert witness is the role the landlord or tenants surveyor assumes and has a duty to the court, whereas an independent expert is the role of the appointed third party.
Are you aware of any RICS documents regarding surveyors acting as Expert Witness?
Yes, there is a Practice Statement for Surveyors Acting as Expert Witness.
What is in it?
10 Professional Standards and 21 guidance notes.
What was the rent you had proposed and they had proposed?
£6,600 and £8,250
What could you refer to without the need of court intervention if you are willing to consider a new lease?
PACT
What are the advantages of PACT?
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