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APC > L&T and Conflict Avoidance > Flashcards

L&T and Conflict Avoidance Flashcards

1
Q

What is the difference between conflict avoidance and conflict management?

A

Conflict avoidance seeks to avoid conflict before it begins

Conflict management involves the use of processes, tools and skills to manage disagreements and disputes

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2
Q

Can you give me an example of dispute resolution techniques?

A
  1. Negotiation
  2. Litigation
  3. Arbitration
  4. Independent Expert Determination
  5. PACT
  6. Mediation
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3
Q

What service does the RICS provide for dispute resolution?

A

RICS Dispute Resolution Service

Examples:
Arbitration
PACT
Independent Expert determination

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4
Q

What are the benefits of ADR mechanisms?

A
  1. Speed
  2. Informality
  3. Cost
  4. Greater opportunity for negotiation
  5. Quality if decision making
  6. Confidentiality
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5
Q

What is PACT?

A

Professional Arbitration on Court Terms

  1. Form of ADR specific to L&T Act 1954 renewals.
  2. Both parties must agree and correct steps undertaken
  3. Can be used before or after formal lease renewal court proceedings issued
  4. Joint iniative between Law Society and RICS
  5. Dispute resolver can act as IE or Arbitrator
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6
Q

What is mediation?

A
  1. Involves the use of a neutral mediator who facilitates discussions to explore if a solution can be found
  2. Confidential & Informal
  3. Mediation usually conducted on a without prejudice basis
  4. Mediator has no decision making authority and cannot impose a resolution
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7
Q

What are the two roles of surveyors in dispute resolution proceedings?

A

Expert Witness or Advocate

Practice Statement & Guidance Notes for:

  1. Surveyors acting as expert witnesses (2014)
  2. Surveyors acting as advocates
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8
Q

What RICS guidance note covers independent experts & arbitrators?

A

Guidance Note for:

Surveyors acting as arbitrators in commercial property rent review disputes (2013)

Surveyors acting as independent experts in commercial property rent review disputes (2014)

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9
Q

Whats the difference between a licence and a lease?

A
  1. Lease provides occupier with an estate in the relevant land / a licence is permission to make it lawful for them to use the land.
  2. A lease can be assigned / a licence is normally a personal right
  3. A lease cannot be terminated until it expires (unless break clause) / A licence can usually be revoked at any time.

Street v Mountford (1985)

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10
Q

What are the four requirements of a lease?

A
  1. Exclusive possession
  2. Payment of rent
  3. for a specified term
  4. If more than 3 years, term must be in writing, signed as a deed.
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11
Q

What are the four usual assumption for a rent review?

A
  1. Property available to let on open market by willing tenant to willing landlord for a term of years as stated.
  2. Property is fit and available for immediate occupation and use.
  3. All covenants observed by the landlord and tenant
  4. Property may be used for purpose set out in lease.
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12
Q

What are the three usual disregards for a rent review?

A
  1. Effect of goodwill on tenants occupation
  2. Ignore goodwill attached to property
  3. Tenants improvements if landlord consent has been granted for the works.
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13
Q

Is time normally of the essence?

A

Time is not usually of the essence

United Scientific Holdings v Burnley Borough Council (1978)

Bello vs Ideal View (2008)

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14
Q

What is the rent review hierarchy of evidence?

A
  1. Open Market Lettings
  2. Lease renewals
  3. Rent reviews
  4. Independent expert determinations
  5. Arbitrator awards
  6. Court determination under L&T Act 1954
  7. Hearsay evidence
  8. Sale & leaseback
  9. Surrender & renewals
  10. Inter-company arrangements
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15
Q

What is a calderbank offer?

A
  1. Form of negotiation for disputed rent reviews that provides some protection against costs
  2. Stems from Calderbank v Calderbank 1975.
  3. Requires careful drafting & client approval as potentially binding.
  4. Validity can be influenced by various factors - must be genuine, clear and remain open long enough.
  5. Can be used for lease renewals of protected tenancies.
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16
Q

What is a Part 36 offer?

A
  1. Without prejudice save as to costs mechanism for L&T Act 1954 lease renewals.
  2. Seek legal advice / solicitors serve
17
Q

What three points can you appeal to the high court for an arbitrator award?

A
  1. A challenge to the tribunals jurisdiction
  2. On a point of law
  3. Serious irregularity
18
Q

Can you appeal an Independent expert determination?

A

No but they can be sued.

19
Q

What is the cost of the Dispute Resolution Service?

A

£425

20
Q

What is the difference between an Arbitrator and Independent Expert?

A
  1. Evidence - Arbitrator acts on evidence / Independent expert has duty of investigation and can use own knowledge and expertise.
  2. Appeal - Arbitrator has limited right of appeal / Independent expert has no right of appeal.
  3. Negligence - Arbitrator is not liable / Independent expert is
  4. Disclosure - Arbitrator has power of disclosure / Independent Expert does not.
  5. Law - Arbitrator acts within the Arbitration Act 1996 / Independent expert is governed by contract
  6. Outcome - Awards / Determination
  7. Costs - Arbitrator has power over all costs / Independent expert depends on lease.
21
Q

What is included within a rent memo?

A
  1. Name of landlord / tenant
  2. Address
  3. Date of lease and rent review
  4. Confirmation of new rent
  5. Signed and dated by both parties
22
Q

What is the timeframe for serving a S.25 notice?

A

Must be served not more than 12 months and not less than 6 months

23
Q

What does s.24 cover?

A

Continuation tenancy (Holding Over)

24
Q

What happens if you pass the date for the new lease / termination as specified in a s.25 or s.26 notice?

A

Lose security of tenure unless:

  1. New lease in place
  2. Either party has applied to court
  3. Parties have agreed to extension
25
Q

What are the requirements of a s.25 notice?

A
  1. Given by competent landlord to tenant
  2. State date for termination
  3. Be in prescribed form and inform tenant of their rights
  4. Inform of proposed terms including rent (friendly)
  5. Inform of grounds of opposition (hostile)
26
Q

What information is required in a S.25 notice?

A
  1. Name / address of LL & tenant
  2. Address
  3. Notice of date to end the tenancy
  4. Confirmation of whether opposed or granted
  5. Confirmation of date tenant must ask court for new tenancy
  6. Must include rent if friendly
  7. Must include grounds for opposition if hostile
  8. Strong recommendation to seek professional advice.
27
Q

What are the grounds for refusal of a new lease?

A

Fault Based Grounds

a. Breach of repairing covenant

b. Persistent delay in paying rent

c. Other substantial breach

Non-Fault Grounds

d. Provide suitable alternative accomodation

e. Uneconomic subdivision (compensation

f. Demolition or reconstruction (compensation)

g. Owner occupation (compensation)

28
Q

What are the requirements for ground f? What is the case law?

A

Must prove:
1. Firm intention
2. Funding & planning
3. Substantial work
4. Necessity to gain vacant possession
5. Ability to redevelop if VP secured

Case Law: S Frances v The Cavendish Hotel (London) 2018 - found the acid test was whether the landlord would do the works if the tenant left voluntarily

29
Q

What are the requirements for ground g?

A

Landlord must:

  1. Own property for minimum of 5 years
  2. Prove intention to occupy
30
Q

What compensation is payable to the tenant if the landlord opposes business tenancy?

A

1 x RV less than 14 years
2 x RV more than 14 years

31
Q

What changes are you aware of for the L&T act 1954?

A
  1. There is an upcoming consultation paper for reform of part 2 L&T Act 1954.
  2. Paper seeks to ensure that Part 2 works for todays commercial leasehold market.
  3. Paper pushed back to Autumn 2024
32
Q

What are the two types of declaration?

A
  1. Simple Declaration - Parties have at least 14 days prior to committing to lease
  2. Statutory Declaration - given when parties have less than 14 days - statutory declaration must be made before an independent solicitor.

APC (21 decks)

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