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SQE - FLK1 > Land Law > Flashcards

Land Law Flashcards

1
Q

What are the 3 categories of objects on land? Which objects transfer with ownership of the land?

A
  1. Fittings - chattels that do not pass with the land
  2. Fixture - usually transfer with the land, sometimes removable
  3. Improvement - permanent addition to the premises
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2
Q

2 rules regarding ownership of landlord’s fixtures?

A
  1. Items abandoned by installing tenant become landlord’s property
  2. Landlord’s fixtures replaced by tenant remain landlord’s fixtures
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3
Q

What is the key difference between a legal and equitable property right?

A

Equitable property rights do not bind a bona fide purchaser of a legal estate for value without notice

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4
Q

What are the five interests in land that can exist as a legal interest (besides freehold and leasehold)?

A
  1. Easement
  2. Rentcharge for fixed period of time or in perpetuity
  3. Charge by legal mortgage
  4. Charge on land not created by instrument
  5. Rights of entry annexed to a rentcharge or leasehold estate
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5
Q

4 elements required for a valid deed?

A
  1. Signature
    2.Witnessed
  2. Delivered as a deed
  3. In writing
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6
Q

What 3 elements does S.2 of the LPMPA stipulate for a valid contract for sale of land?

A
  1. In writing
  2. Contain all terms of the contract in one document (including by express reference to another document)
  3. Signed by each party to the contract
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7
Q

Purpose of the Land Charges Department? Five registers maintained by the Land Charges Department?

A

Protect interests in unregistered land

  1. Land Charges
  2. Pending land actions and actions in bankruptcy
  3. Writs and orders affecting land and in bankruptcy
  4. Deeds of arrangement affecting land
  5. Annuities
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8
Q

Which important interest CANNOT be protected under the Land Charges Act?

A

Interest in unregistered land under a trust of land or settlement

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9
Q

3 essential searches a solicitor should conduct with the Land Charges Department when conveyancing unregistered land?

A
  1. Request office copy of register using Form K19
  2. Conduct index map search
  3. Official search of index to obtain registered entries
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10
Q

What is the purpose of “good root of title”?

A

To show an unbroken and unfettered chain of ownership for a period of AT LEAST 15 YEARS at the date of exchange, ending with the current owner

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11
Q

Important point when searching a register for encumbrances on unregistered land?

A

Search should be conducted against the names of the current and previous estate owners, not the property

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12
Q

Three components of the Title Register of the Land Register?

A
  1. Property Register
  2. Proprietorship Register
  3. Charges Register
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13
Q

What is the definition of overriding interests? Four examples?

A

Interests that cannot be protected by registration but which will bind any third party buying the land or any interest in it

  1. Rights of persons in actual occupation
  2. Charges in favour of a local authority
  3. Legal easements
  4. Legal leases for seven years or less
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14
Q

What is a substantively registrable estate? Give four examples.

A
  1. Fee simple absolute in possession
  2. Leases > 7 years
  3. Profit a prendre in gross
  4. Estate rentcharge
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15
Q

What is an estate rentcharge?

A

An annual sum paid by a freehold owner to a third party (who need not, and normally does not, have any other interest in the land)

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16
Q

Three scenarios where a person in actual occupation at the time of disposition will not have an overriding interest?

A
  1. Inquiry was made of the person before the disposition but he failed to disclose the right when he could reasonably have been expected to do so
  2. Occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and the transferee had no actual knowledge of it
  3. Leasehold estate takes effect in possession after the end of a period of three months beginning with the date of the grant, and has not taken effect in possession at the time of the disposition
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17
Q

4 requirements for unregistered easements or profits a prendre to constitute overriding interests?

A
  1. Must be LEGAL interest
  2. OBVIOUS on reasonably careful inspection
  3. Transferee has ACTUAL KNOWLEDGE of the easement
  4. Easement was exercised in the 12 MONTHS PRIOR to the disposition
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18
Q

What kind of register entry should be made to protect an interest under a trust?

A

An interest under a trust cannot be protected by entry of a Notice.

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19
Q

What is a Notice?

A

An entry in the Register of a benefit or burden of an interest affecting the land

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20
Q

What is a Restriction?

A

An entry on the Proprietorship Register showing either: (1) the powers of the proprietor are limited or (2) a prior condition must be met before a disposition can be registered

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21
Q

What is the effect of the first in time rule? How does registration affect this?

A

Interests in a registered estate or charge are prioritised by their order of CREATION, generally.

However, under the LRA 2002, REGISTERED dispositions for VALUABLE CONSIDERATION can override and postpone unprotected interests

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22
Q

What is the difference between “good” and “qualified” leasehold title?

A
  1. Good leasehold title: landlord’s title has not been registered with absolute title or is unregistered
  2. Qualified freehold title: hassome defect or right that is specified on the Register
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23
Q

3 important situations triggering first registration?

A
  1. Transfer of freehold or leasehold with > 7 years to run
  2. Grant of a new lease > 7 years
  3. Creation of a first legal mortgage over either a freehold or a lease > 7 years
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24
Q

Requirements for absolute leasehold title?

A
  1. Lease is vested in the owner
  2. Lease was validly granted
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25
Q

What is the deadline for compulsory first registration? Effect of failure to comply?

A

2 months from the date of the conveyance.

Failure to comply will void the conveyance and the legal estate reverts back to the transferor who will hold it on bare trust for the transferee (disposition takes place only in equity as an estate contract)

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26
Q

Define a trust for sale. Why are they no longer relevant?

A

Trusts under which trustees are obliged to: (1) sell the trust property and (2) hold the sale proceeds on trust for the beneficiaries

From 1997 onwards, under TOLATA, all trusts for sale are converted to trusts for land - power but no obligation to sell

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27
Q

3 important rights of beneficiaries under TOLATA?

A
  1. Right of occupation (not absolute, trustees may restrict)
  2. Rights of consultation
  3. Rights to remove and appoint trustees if the trustee does not nominate a person to appoint new trustees
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28
Q

What dispute resolution function does TOLATA create?

A

Any trustee of land or person with an interest in the trust property may apply for a court order under S. 14 TOLATA, which can apply to any exercise by the trustees of any of their functions

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29
Q

4 considerations courts exercise when resolving disputes under TOLATA?

A
  1. Intentions of settlor
  2. Purpose of trust
  3. Welfare of any minors
  4. Interests of secured creditors
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30
Q

What are the 5 conditions for overreaching?

A
  1. Purchase money paid to at least two trustees or a trust corporation
  2. Trustees convey legal estate to a buyer in good faith
  3. Purchase is for valuable consideration
  4. Trustees give receipt for any capital money
  5. The right can be converted into money
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31
Q

How does overreaching apply for unregistered land?

A

A BFP will take the title free of any beneficial rights unless he had actual, constructive or imputed notice of the beneficiary’s interest

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32
Q

How does overreaching apply for unregistered land where the trustees act ultra vires their powers?

A

If the BFP had no actual notice of the contravention, the contravention will not invalidate the conveyance

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33
Q

What are the four unities that must be present for a joint tenancy to exist?

A
  1. Possession at the same TIME
  2. Same TITLE, deriving ownership from the same instrument
  3. Same INTEREST (nature, duration and extent)
  4. Each JT entitled to POSSESSION of the whole property
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34
Q

What happensto the estate when there are two tenants in common and one dies?

A

The legal ownership will always vest in the surviving joint tenant under the doctrine of survivorship, because co-owners always hold as JTs at law.

The equitable ownership will pass under intestacy rules.

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35
Q

What is the maximum number of joint tenants for a single property?

A

Limit will be 4 JTs on the legal title, but there is no restriction on the number of co-owners in equity.

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36
Q

What is the most straightforward way to sever a joint tenancy?

A

Deliver notice in writing to the other JTs by leaving it OR sending it by registered mail at their last-known place of abode or business

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37
Q

How can a severing joint tenant protect his equitable interest?

A

Apply for a Form A Restriction in the Land Registry

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38
Q

How should a non-owning spouse protect her home rights in the matrimonial home?

A

Apply to register them, thereby preventing the legal owner from selling or mortgaging the property without consent (alternatively, use an agreed notice). Otherwise, they could lose the right under a registrable disposition

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39
Q

4 requirements for there to be an easement?

A
  1. Identifiable dominant and servient TENEMENT
  2. Easement ACCOMMODATES AND SERVES the dominant land (not just a business on that land or some other personal benefit to the owner)
  3. Dominant and servient owners must be DIFFERENT PERSONS
  4. Easement must be capable of forming the SUBJECT MATTER OF A GRANT (sufficiently definite, cannot oust the servient landowner of reasonable use of their property)
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40
Q

3 requirements to create a legal easement over registered land? Exception?

A
  1. Create by deed
  2. Enter notice in the Charges Register of the servient estate
  3. Enter benefit in the Property Register of the dominant estate

Exception is where a seller of land expressly reserves a legal easement in the transfer of the legal estate-here no additional formalities are required to maintain the right at law

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41
Q

Who bears the responsibility to repair or maintain the way, if an express easement does not specify this?

A

Neither owner is obliged to repair or maintain and if either does so, they will solely bear the repair / maintenance costs.

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42
Q

What is the threshold to imply an easement of necessity?

A

The easement must be necessary for the USE of the land granted or retained (and not merely for its reasonable enjoyment or convenience), AT THE TIME OF THE DISPOSITION.

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43
Q

When does an easement of intended use arise?

A

There is a CLEAR and MUTUAL intention for the land to be used in a PARTICULAR MANNER and the easement is NECESSARY to give effect to that intended use

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44
Q

When is an easement implied under the Wheeldon v Burrows rule (4 requirements)?

A
  1. COMMON OWNER disposes of a benefited part of his land and retains the burdened portion
  2. Right is CONTINUOUS AND APPARENT
  3. Right is NECESSARY FOR REASONABLE ENJOYMENT of the property
  4. At the time of the grant, the quasi-easement was BEING USED by the common owner for the benefit of the part granted
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45
Q

When is an easement implied under S.62 of the LPA 1925?

A
  1. Right was exercised over land RETAINED by the grantor
  2. Right was APPURTENANT TO the dominant tenement
  3. Right was ALREADY ENJOYED at the time the conveyance was completed (even if only by way of licence)
  4. Conveyance was of a LEGAL ESTATE
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46
Q

4 requirements to gain an easement by prescription?

A
  1. As of RIGHT (not by force, in secret or with permission)
  2. By one FEE
    SIMPLE owner against another
  3. CONTINUOUS (not infrequent)
  4. For SUFFICIENT time (usually 20 years)
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47
Q

What is the easiest way for a landowner to obstruct or interrupt a neighbour’s right to light?

A

Introduce a notional interruption by obtaining a certificate from the Lands Chamber and then applying to the Land Charges Register for a LIGHT OBSTRUCTION NOTICE, effective for one year.

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48
Q

2 requirements for a legal easement?

A
  1. Must be created by statute, deed or prescription
  2. Must be in perpetuity or for a fixed term
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49
Q

2 requirements for an easement to be overriding?

A
  1. Must be LEGAL, not equitable
  2. Must be in existence at the DATE OF FIRST REGISTRATION (easements only created post-registration must be protected by notice on the servient title)
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50
Q

Which 2 kinds of easements must be registered to be enforceable against 3Ps?

A
  1. Legal easements created after the date of first registration
  2. Equitable easements
51
Q

What are the 4 classifications of profits a prendre?

A
  1. Appurtenant (only enforceable by DT owner) or in gross (freestanding right independent of profit owner’s land ownership
  2. “Several” (excludes servient owner) or “in common” (includes servient owner)
52
Q

2 ways to protect profits a prendre in gross?

A
  1. Substantively register with its own title
  2. Register title against affected registered land (or caution against FR, for unregistered land)
53
Q

What is the key difference between restrictive and positive covenants?

A

Restrictive covenants can be enforced against future owners of the servient land, whereas positive covenants can only be personally enforced against the promisee

54
Q

2 formalities for creating covenants? What about unregistered land?

A

Should be (1) created by deed and then (2) protected by entry of a notice on the register of title of the servient land (can be agreed or unilateral)

For unregistered kland: should register as a Class D(ii) Land Charge

55
Q

When does the burden of a covenant run with the covenantor’s land at common law and equity?

A

Never. The original covenantor is always solely liable on the covenant, even if they have transferred the land to someone else.

It can only run in equity IF the covenant is restrictive and certain other criteria are met.

56
Q

When does the benefit of a covenant run with the covenantee’s land at common law (3 requirements)?

A
  1. TOUCHES AND CONCERNS the land
  2. Parties INTENDED benefit to pass with the successors, either expressly or through the statutory presumption of annexation
  3. The covenantee and successors hold the LEGAL ESTATE in the land to be benefited
57
Q

3 requirements for a covenant to touch and concern land?

A
  1. Covenant only benefits the reversioner for the time being (ceases to be of benefit if separated from the reversion)
  2. Affects the nature, quality, mode of user or value of the reversioner’s land
  3. Not expressed to be personal
58
Q

5 requirements for the burden of a covenant to run at equity under Tulk v Moxhay?

A
  1. Negative
  2. TOUCHES AND CONCERNS the land
  3. Parties INTENDED burden pass with the successors, either expressly or through the statutory presumption of annexation
  4. Entered into FOR THE BENEFIT of the land retained
  5. Covenantee COMPLIES with equitable maxims
59
Q

3 routes for the benefit of a covenant to pass in equity?

A
  1. Words of ANNEXATION - whether express, statutory or implied
  2. CHAIN of equitable assignments
  3. Rules related to BUILDING SCHEMES
60
Q

W

When will subdivision of the dominant land preserve any underlying restrictive covenant (2 situations)?

A
  1. Original covenantee still owns a part of the original dominant land
  2. Covenant is expressed to be annexed to each and every part of the land, so as to be enforceable by each new owner of the subdivided plot
61
Q

How can the original covenantor protect himself from future covenantee claims after transferring away the burdened land (2 ways)?

A
  1. Chain of indemnity covenants from the subsequent purchaser
  2. Enter a title restriction on the burdened land preventing registration until the covenantee enters a new direct covenant with the covenantor
62
Q

3 ways to discharge a covenant

A
  1. Express agreement of all covenantees
  2. Implied extinguishment - benefit-holder fails to take action against a breach
  3. Application to the Upper Tribunal (Lands Chamber) on the grounds of obsolescence
63
Q

What are the two ways of creating a legal mortgage?

A
  1. Unregistered land - EXTRA LONG LEASE, with right to sell the estate and retain the title deeds
  2. Registered land - DEED expressly stating that the property has been charged with the debt under a legal mortgage, plus REGISTRATION on the Charges Register
64
Q

Describe the equity of redemption (2 points)

A

Mortgagor can redeem his mortgage at any time (even if the legal date for redemption has passed) with: (i) six months’ notice or (ii) six months’ interest in lieu of notice

65
Q

4 key rights of the mortgagOR under a legal mortgage?

A
  1. Right to redeem
  2. Right to lease
  3. Right to possession until the mortgagee makes any (lawful) demand for possession
  4. Right to sue in relation to the land
66
Q

What is the effect of foreclosure? 2 disadvantages?

A

Effect is to vest mortgagor’s title in the mortgagee and extinguish the mortgage

  1. If the property is worth more than the debt, court is likely to ORDER A SALE
  2. If the property is worth less than the loan, the mortgagee cannot SUE FOR BALANCE
67
Q

When does a mortgagee’s right to possession arise under common law?

A

Unless the mortgage agreement excludes this right, the mortgagee is entitled to possession FROM THE DATE THE MORTGAGE IS EXECUTED, regardless of default

68
Q
A
69
Q

Two ways to take possession of residential property?

A
  1. Apply to court - usually for an order that borrower hands over possession within 28 days
  2. Enter peacefully and take possession - MUST NOT USE OR THREATEN VIOLENCE which is a criminal offence
70
Q

What can the borrower do to resist an application by a mortgagee to take possession? 2 limitations?

A

Rely on S.36 of the AJA 1970: court’s discretionary power to adjourn proceedings, stay possession order or postpone deadline for delivery of possession, if the mortgagor is likely to be able within a REASONABLE PERIOD to pay any sums due under the mortgage

Limitation 1: must involve dwelling house
Limitation 2: only applies if lender brings possession proceedings, not for self-help remedies

71
Q

w

Two requirements for mortgagee to lawfully exercise power of sale?

A
  1. Power must arise: (i) mortgage made by deed AND (ii) money becomes due - including once any instalment is in arrears
  2. Power became exercisable: (i) mortgagee served NOTICE FOR REPAYMENT and mortgagor failed to comply for 3 months; (ii) some INTEREST due has been in arreas for two months; OR (iii) mortgagor has BREACHED some provision of the LPA 1925 or the mortgage deed unrelated to payment
72
Q

2 duties of a mortgagee when exercising power of sale?

A
  1. Must act in GOOD FAITH to obtain CORRECT MARKET VALUE
  2. Must use REASONABLE CARE when selling the property to obtain the BEST PRICE REASONABLY OBTAINABLE at the time (no need to maximise revenue)
73
Q

What is the main advantage for a mortgagee of appointing a receiver?

A

The receiver is treated in law as the agent of the mortgagor, so the mortgagee will be relieved of any liability if the receiver is negligent

74
Q

How does a mortgagee protect his interest for a mortgage over unregistered land?

A
  1. First legal mortgagee can retain title deeds
  2. Subsequent mortgagees can register a Class C(i) Land Charge (puisne mortgage)
75
Q

Two essential formalities to establish priority for your legal mortgage over registered land?

A
  1. Create by DEED
  2. REGISTER in the Land Registry
76
Q

Essential formality to establish priority for your equitable mortgage?

A

Protect by notice on the title register so it takes priority over any subsequent legal mortgage or charge.

77
Q

What is the key difference between a licence and a lease?

A

A lease must involve the grant of exclusive possession under an enforceable agreement.

78
Q

What is a tenancy at will?

A

Tenant occupies a property with the landlord’s consent INDEFINITELY on the basis that either party can terminate the agreement by giving immediate notice to the other party at any time

79
Q

What is a periodic tenancy?

A

A lease for a GIVEN PERIOD which AUTOMATICALLY RENEWS at the end of that period for the same length of time

80
Q

What is a tenancy at sufferance?

A

Where a tenant remains in possession of the property after a lease expires and the landlord has not confirmed whether to extend it. The tenancy continues on the SAME TERMS but the landlord can TERMINATE AT ANY TIME

81
Q

When does a tenancy by estoppel arise?

A

Landlord grants a lease to a tenant without having the legal estate in the land

82
Q

2 reqiuirements for a valid lease? Any exceptions?

A
  1. Term of years absolute
  2. Created by deed

The exceptioon is parol leases, which can be legal despite being made verbally if: (1) term is for 3 years or less and (2) extended at the best rent which can reasonably be obtained without taking a fine

83
Q

How do you protect the following leases over registered land:

  1. 8 year lease
  2. 6 year lease
A

For leases over 7 years: (1) register with its own separate title and (2) register a notice in the Charges Register of the freehold title

Leases under 7 years are automatically provided as overriding interests

84
Q

When will a lease not created by deed still be valid? When is it overriding?

A

Can have a valid equitable lease (an estate contract to create a legal lease) if:

(1) made in writing
(2) incorporates all agreed terms
(3) signed by parties to the agreement

Equitable leases are never overriding

85
Q

What is a reversionary lease? Important point?

A

A lease with a future start date.

Important: reversionary lease which only takes effect more than 21 years in the future is void

86
Q

How do you usually extend an existing lease term?

Alternatives without consent?

A

Execute a deed of variation: will surrender existing lease and issue a new one with the extended term.

Apply tou court for a renewal lease.

87
Q

What is the usual extent of a landlord’s repairing obligation?

A

No implied obligation, but for residential leases under 7 years where the tenant has no right to renew the lease for a term, landlord has a statutory and mandatory repair covenant for the STRUCTURE, EXTERIOR, WATER SUPPLY, HEATING and SANITATION

88
Q

Who normally bears the obligation to insure?

A

Usually the landlord

89
Q

What happens to rent when the property is damaged or destroyed by an insured risk (2 points)?

A
  1. Commercial leases contain an IMPLIED COVENANT that rent continues to be payable even in the event of damage or destruction by an insured risk
  2. But normally a RENT SUSPENSION CLAUSE is inserted suspending rent until the damage or destruction is repaired with a LONGSTOP TERMINATION clause
90
Q

What is the general rule on timing of a rent review? Exception?

A
  1. For rent reviews, time is generally not of the essence
  2. Can be rebutted where the lease expressly has a contradictory provision - usually a deeming provision that T accepts L’s offer if he does not respond within a certain time
91
Q

In what situation must a landlord obtain two independent estimates for service work? Deadline?

A

Where the work is expected to exceed 1,000 GBP.

Must be circulated among tenants for consultatation at least one month before work is due to be carried out EXCEPT for emergency

92
Q

What statutory protection do tenants receive for service charges? Any exception?

A

S. 19 LTA 1984: (1) cost must be reasonably incurred (2) work must be of a reasonable standard; otherwise tenants can challenge charges

ONLY for residential tenants; commercial property tenants receive no statutory protection so the tenant’s solicitor must take care

93
Q

When is a tenant permitted to assign or sub-let the lease (cover 2 scenarios).

A
  1. NEVER if the lease contains an ABSOLUTE COVENANT against assignment or sub-letting
  2. If the lease contains a QUALIFIED COVENANT, statutorily converted into a FULLY qualified covenant whereby landlord’s consent must not be unreasonably withheld
94
Q

What charges can landlord levy for consenting to assignment / sub-letting?

A
  1. Only a reasonable sum for DAMAGE / DIMINUTION IN VALUE / EXPENSES INCURRED IN DEALING WITH APPLICATION FOR CONSENT
  2. No fine or premium unless the lease expressly provides otherwise
95
Q

Two remedies of the tenant where L unreasonably does not consent to a request to assign or sub-let?

A
  1. PROCEED with assignment, which will not amount to a breach of covenant
  2. APPLY to court for a DECLARATION that the landlord is acting unreasonably and/or DAMAGES
96
Q

Additional protection for landlords in new commercial leases under S.19(1A) LTA 1927? Caveat?

A

Ls and Ts permitted to agree on SPECIFIC CIRCUMSTANCES in which L may withhold consent or on which assignment is conditional. These will NOT be subject to the reasonableness test.

Only applies to assignment and not sub-letting, but L may specify conditions which must be complied with before sub-letting is allowed.

97
Q

3 statutory restrictions on the landlord’s powers under a covenant restricting alterations?

A
  1. Cannot refuse consent if the work proposed is to make REASONABLE ADJUSTMENTS to allow access to disabled persons
  2. May NOT demand a fine or premium for granting consent UNLESS lease permits landlord to do so
  3. Consent may not be UNREASONABLY withheld if ALTERATIONS constitute an IMPROVEMENT (ie any ab
98
Q

When is T entitled to compensation for improvements?

A
  1. When improvement is made LESS THAN 3 YEARS before termination of the tenancy
  2. Compensation due at the END of the term
  3. Provided lease does not require tenant to yield property IN THE SAME CONDITION as when the lease was granted
99
Q

When can the landlord charge a fine or premium for consent to change of user?

A

When the alteration of user involves structural alterations to the property.

100
Q

What two covenants do landlords commonly include in the lease to avoid falling afoul of planning and building control regulations?

A
  1. Must seek prior consent before carrying out any works
  2. Must comply with prevailing planning and building control regime in relation to any alterations that the landlord consents to
101
Q

What is the principle of mutual enforceability of covenants for residential leases?

A

Landlord must: (1) covenant with all tenants that all leases will be granted on SIMILAR TERMS and (2) take ENFORCEMENT ACTION, on behalf of an innocent tenant, against any tenants in breach of covenants (with innocent tenant INDEMNIFYING the landlord for the full costs)

102
Q

Two key landlord’s implied covenants?

A
  1. QUIET ENJOYMENT
  2. Not to DEROGATE from grant
103
Q

Two key tenant’s implied covenants?

A
  1. Not to deny landlord’s TITLE
  2. REASONABLE CARE of the property, in a tenant-like manner
104
Q

5 remedies available to the landlord for rent arrears?

A
  1. Deduct from rent deposit (L is a secured creditor with a charge over the deposit)
  2. Action for debt (6 years limitation period)
  3. Statutory insolvency demand (can issue proceedings if debt not paid within 21 days)
  4. Commercial Rent Arrears Recovery - only for WRITTEN COMMERCIAL LEASES, on RENT ARREARS OWING FOR 7 DAYS
  5. Forfeiture - requires express forfeiture clause
105
Q

Three restrictions on landlords’ ability to claim damages for breaches of non-rent covenans?

A
  1. Claim only for diminished value of reversionary interest, not necessarily full repair costs
  2. No damages if premises are likely to be demolished or significantly altered after the end of the lease
  3. Leases initially over 7 years with at least 3 years remaining: notice must be given and court permission may be required to pursue the action
106
Q

What is a Jervis v Harris clause?

A

This is an express clause permitting the landlord to enter the property to perform the repairs, then charge the costs of the repairs to the tenant as a debt without needing to comply with the statutory requirements

107
Q

How do you evict a residential tenant (2 steps)?

A
  1. NOTICE TO QUIT must be served on the tenant in writing, in the prescribed form, with a minimum notice period of 4 WEEKS or 2 MONTHS notice required if no reason is needed to evict
  2. COURT ORDER needed to evict if tenant refuses to vacate
108
Q

How does a landlord or tenant effect merger of the title?

A

Must demonstrate a clear intention to merge the estates - usually by expressly applying for cancellation of the lease notice, closure of the registered leasehold title, etc.

109
Q

When does a landlord’s right of forfeiture arise? 2 ways to exercise?

A

Where there is an express forfeiture clause in the lease.

Either (1) peaceably re-enter the premises (avoiding the threat or use of force) or (2) apply for a court order

110
Q

When does the landlord lose his right to forfeit the lease? One common example?

A

When he waives the breach of covenant. One common example is where he accepts rent from the tenant after becoming aware of the breach of covenant.

111
Q

What is the usual procedure to forfeit a lease for non-payment of rent (2 steps)?

A
  1. DEMAND the exact amount of rent on the day it becomes payable (unless (i) there is an express clause entitling him to forfeit whether formally demanded or not OR (ii) there is at least six months’ rent in arrears and there are insufficient seizable goods to satisfy the sum due)
  2. FORFEIT by ENTERING the premises or CHANGING LOCKS
112
Q

Tenant’s remedy for landlord’s exercise of forfeiture rights?

A

Apply to court for relief against forfeiture: must pay (i) rent and (Ii) landlord’s costs

113
Q

What is the procedure to forfeit a lease for breach of non-rent covenants?

A
  1. Serve S. 146 notice: (i) specifying the BREACH, (ii) allowing a REASONABLE time to remedy the breach IF REMEDIABLE; and (iii) requiring tenant to pay COMPENSATION if approrpaite
114
Q

When can the tenant apply for relief from forfeiture for breach of a covenant to repair? Exception?

A

Any time after the service of the S. 146 notice, including after the landlord has taken possession.

Exception is where L has forfeited pursuant to a court order; then tenant cannot apply for relief.

115
Q

What option does a sub-lessee have if the landlord attempts to forfeit the head-lease?
Restriction?

A

Apply to the court for relief against forfeiture, which would take the form of a new tenancy of the premises previously demised on such terms as the court thinks fit.

The new tenancy may not be longer than the unexpired term of the sub-lease.

116
Q

For leases granted before 1 January 1996: when will the original tenant be liable for tenant covenants after assigning the lease, and what precautions may be taken to manage this?

A

Always liable during the term of the lease, even post-assignment.

Can manage by: (1) requiring assignee to enter into DIRECT COVENANT with the landlord as a condition of the landlord’s consent to assignment and/or (2) requiring assignee to provide an INDEMNITY COVENANT in the assignment to him (now implied by statute)

117
Q

For leases granted before 1 January 1996: when will the original landlord be liable for landlord covenants after selling the reversion, and what precautions may be taken to manage this?

A

Always liable during the term of the lease.

Outgoing landlord will require an express indemnity from the purchaser because no such indemnity is implied by statute

118
Q

For leases granted before 1 January 1996: what is the effect of S. 141 LPA 1925?

A

The outgoing landlord cannot subsequently sue the tenant for breaches committed before the date of the sale, because this right passes to the purchaser of the reversion.

119
Q

What is the key difference between old leases (created before 1 January 1996) and old leases?

A

Prevents original landlord and tenant from respectively being sued for breaches of leasehold covenants after assigning or selling the lease or reversion

120
Q

What is an Authorised Guarantee Agreement?

A

Landlords are entitled in certain circumstances to require the outgoing tenant to enter into an Authorised Guarantee Agreement to guarantee the performance by their immediate assignee of the tenant covenants (which expires on the grant of the renewal lease)

121
Q

What precaution must an outgoing landlord take for a new lease after selling the reversion?

A

Before or within four weeks of selling the reversion, serve a prescribed notice on the tenant seeking release from the landlord’s covenants. AUTOMATICALLY released if T does not reply; and must apply to COUNTY COURT for declaration that release is reasonable if T refuses consent

122
Q

How can head landlord enforce covenants against sub-lessees (3 ways)?

A
  1. Require a direct covenant from the sub-lessee
  2. Enforce restrictive covenants against sub-lessees if the latter have knowledge of the covenants’ existence
  3. Enforce under the CRTPA if the sub-tenancy purports to confer a benefit on him
123
Q
A

SQE - FLK1 (21 decks)

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