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FLK 2 > LAND > Flashcards

LAND Flashcards

1
Q

If a blank front page of a contract for sale has been sent to a buyers solicitor to review (drafted w the Standard Commercial Property Conditions (third edn - 2018 revision (‘SCPC’)) - will compensation be payable under the contract should completion be delayed due to buyer default?

A

Yes, SCPC contains contractual entitlement to compensation. This will be calculated at The Law Society’s interest rate from time to time in force

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2
Q

for easements or profits to be legal they must…

A

be created either forever (estate in fee simple absolute) or for a fixed duration

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3
Q

Is an implied trust legal in nature?

A

no, IT IS EQUITABLE, it doesn’t appear in s1(1) or (2) LPA 1925

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4
Q

If a partner makes significant improvements to the property owned by their partner what type of trust does this form?

A

implied trust

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5
Q

How can an equitable interest be overreached?

A

The seller appoints another trustee (there must be a minimum of two) to sign away rights w the purchase price.

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6
Q

What does ‘assignment’ mean

A

The transference of a lease from one tenant (assignor/assignee) to a third party (buyer/assignee)

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7
Q

what should a third party assignee solicitor check for before the lease is assigned?

A
  • they have the landlords consent.
  • the original lease meets assignees requirements
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8
Q

how do landlords give consent to third party assignments?

A

via licence.
- they will want to check references to ensure assignee is financially strong
- will also want with a direct covenant from Assignee or AGA from assignor

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9
Q

will a Landlord require an undertaking before they consent to a third party assignment? and from who?

A

Yes.
- LL solicitors will require an undertaking from the assignors solicitors to pay for legal and other professional costs involved

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10
Q

How can a third party rescind an assignment contract under The Standard Conditions of Sale (SCS) - leases

A
  • if the LL doesn’t consent within 3 working days of completion
  • or LL consent is subject to conditions the assignee reasonably objects
  • Can rescind by serving notice
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11
Q

How can a third party rescind an assignment contract the Standard Commercial Property Conditions (SCPC)

A
  • LL not consents at completion date
  • LL given 5 extra days
  • Assignor notifies buyer
  • Assignee serves notice on LL
  • takes 6 months to rescind
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12
Q

Who prepares the licence to assign to a third party?

A

The landlord solicitor

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13
Q

what are the key provisions that landlord require to assign a third party lease (on or post 1st jan 1996)

A

Assignor provides AGA

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14
Q

what are the key provisions that landlord require to assign a third party lease (pre 1st jan 1996)

A

assignee enters direct covenants w LL otherwise assignor is trapped by privity of contract

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15
Q

what do Authorised Guarantee Agreements do?

A

a. guarantee assignee will perform the T’s covenants in the lease – incl pay rent
b. promise to perform the covenants if the assignee doesn’t
c. indemnifying the LL for the assignees failure to pay rent or observe other covenants
d. promise to take a new lease if liability of assignee of insolvency occurs

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16
Q

what happens when there is a transfer of deed to a third party assigner? (leases)

A
  • Usually prepared by assignees solicitor
  • Assignment of reg lease: TR1 form under Land Reg rules 2003
  • Un reg lease: assignment of lease over 7 years will = compulsory registration TR1 form
  • Lease under 7 years: deed of assignment format so that registration isn’t triggered.
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17
Q

Is SDLT/LTT payable on third party assignments to a lease?

A

yes.
- Payable on any available purchase price charged by assignor
- not payable on rent

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18
Q

what are the requirments of a deed? and what legislation is it found in?

A
  • Deed needed (meets criteria of s 52 LPA 1925)
  • In writing, clear on face, signed, witnessed, delivered.
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19
Q

what is an estate contract?

A

a contract to transfer a legal lease or freehold = estate contract.

  • Complies w s 2 LMPA 1989
  • Clean hands (Specific performance remedy)
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20
Q

what are the characteristics of a lease?

A
  1. Estate must be for a duration permitted for a leasehold estate
  2. Grants exclusive possession
  3. Correct formalities
21
Q

what are a landlords covenants to a tenant?

A
  1. Quiet enjoyment* (Landlord doesn’t act/interfere) (protection from Eviction Act 1977 stops landlord from unlawfully depriving possession)
  2. Insurance
  3. Respect of fitness of property* (landlord must repair the structure (exterior and interior) of dwelling house, keep installation of gas, water elec working, repair heating)
22
Q

what act can a tenant use to prevent a landlord from alienation?

A

A tenant can use the Landlord Tenant Act (LTA) 1988 to impose an obligation on a landlord to not unreasonably withhold consent for alienation.
Landlord has the option to
1. Give consent (unless unreasonable)
2. Write notice of decision incl conditions: most popular condition is an Authorised guarantee agreement (AGA)
3. Refuse and give reasons why

23
Q

what is Commercial rent arrears recovery (CRAR)

A
  • Only available against Tenants in possession
  • LL enters premises to seize T’s goods and sell them
  • Arrears and rent = paid off by tenants goods

*rent due exceeded 7 days rent minimum

24
Q

Do you need a court order to use CRAR? (Commercial Rent Arrears Recovery)

A

no

25
Q

How many days notice must the LL give a T when enforcing CRAR?

A

LL gives T minimum of 7 days notice through enforcement agency (bailiff)

26
Q

does CRAR allow forfeit of lease?

A

No, CRAR acknowledges that the lease exists

27
Q

What are the 3 landlord remedies for non payment of debt? (leases)

A
  1. debt action
  2. CRAR
  3. forefiture
28
Q

how does a landlord force the forfeit of a commercial lease?

A
  • LL must serve s 146 notice
    1. Specifying breach
    2. Req remedy within reasonable time
    3. Req compensation if desired
  • Breach of covenant against alienation cannot be remedied = LL does not need to icl reasonable time to remedy within their S 146 notice.
  • If T remedies their breach within time given = not forfeiture
  • If a head lease is forefeited any subleases will be too
  • T can apply for releif
29
Q

what is the Self-help remedy in a lease for a LL?

A
  1. Self – help remedy
    - Remedy for LL specifically, - when there is breach of T covenant to repair (Jervis v Harris 2996)
    - Lease contains provision that allows LL to
    (a) Enter + inspect premises
    (b) Give T notice of repairs req and time period
    (c) T does not complete work LL can enter and do the work
    (d) LL can recover cost of work as debt due
30
Q

what are a tenants remedies if a LL breaches a covenant?

A
  1. Specific performance (rare)
  2. Damages
  3. Self-help
31
Q

can a tenant withhold rent if they had to use a self-help remedy against a LL’s failure of a covenant?

A

yes.
- If T does repairs they can withhold rent until they have been repaid
- OR if T withholds rent and LL sues, equity may mallow unliquidated claim to be set off against liability for rent

32
Q

Leases can be brought to an end by… (9)

A
  1. Effluxion of time
  2. Notice to quit
  3. Break clause
  4. Surrender
  5. Disclaimer
  6. Frustration
  7. Repudiatory breach
  8. Merger
  9. Forfeiture
33
Q

what are the 3 types of leasehold covenants?

A
  1. Absolute covenant
    - T cannot carry out the stated action in lease
    - Landlord can give ‘one-off consent’/consent to variation of lease
    - Landlord has complete discretion
  2. Qualified covenant
    - Allows T to carry out stated action if consented by LL
  3. Fully qualified covenant
    - Allows T to carry out stated action w LL consesnt
    - If LL does not consent the LL cannot withhold consent unreasonably
34
Q

what are the features of a typical commercial lease structure?

A
  1. Prescribed clauses: Standard set of clauses
  2. Commencement
  3. Interpretation
  4. Ancillary rights
  5. Rights excepted and reserved
  6. Annual rent
  7. Rent review
  8. Tenants covenants
  9. Repair covenant
  10. Re entry / forfeiture
35
Q

what is a Full repairing and insuring lease (FRI)

A

T has responsibility to fully repair and insure the property.
(usually for commercial T)

36
Q

Why are FRI leases seen as good by investment institutions

A

just means that the property is protected and taken care of. protects their investment and means it can be sold on

37
Q

The register for registered land is split into what 3 parts?

A
  1. The property reg
  2. The proprietorship reg
  3. The charges reg
38
Q

what are the two qualifying estates that trigger registration on the land reg?

A
  1. unregistered freehold estate
  2. unregistered leasehold estate 7 years + to run
39
Q

the transfer of a qualifying estate by sale, gift, court order or assent…

A

triggers first registration

40
Q

what is the time limit on registering a triggered land registration?

A

2 months.

if not equitable interest is created

41
Q

what are overriding interests?

A

interests in the land that don’t appear on the register
- legal easements
- leases under 21 years
- rights of people in actual occupation

42
Q

Does a written notice for severing a Joint tenancy need to be signed?

A

No.

  • give notice to other co-owners stating intention to sever
  • unilateral contract = doesn’t require permission
43
Q

Can you give written notice of severance (joint tenancy) by post?

A

Yes but must be registered post
- post office recieved and records it

44
Q

What are the correct formalities for registering a lease of more than 3 years but fewer than 7?

A

By deed
- signed, witnessed, delivered

45
Q

What are the formalities to register a lease of more than 7 years?

A

By deed
Registered land (reg for registered land)
*Triggers the registration on TR1 form for unregistered land)

46
Q

What are the formalities for a fixed term lease under 3 years?

A
  1. Fixed term lease: deed
  2. Parole lease: can be oral
    - immediate possession
    - market rent
    - less than 3 years
    - no premium
47
Q

What are the formalities for a legal mortgage?

A
  • created by deed
  • registered
48
Q

What are the formalities for an easement?

A
  • created by deed
  • for duration equivalent to legal estate
  • registered

FLK 2 (5 decks)

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