LAND & PROPERTY Flashcards

Question 1

Q

If a positive covenant has been validly created in the transfer deed for the ‘maintenance of a shared driveway’ when selling half of a property.

And later, buyer (B1) sold the land adjoining to another person (B2) which contains equally this positive covenant and provided indemnity covenant to B1.

B2 later sold the same land to B3, who also provided an indemnity covenant to B2.

B3 now refuses to contribute toward the maintenance of a shared driveway, but continues to use it.

Can Landlord enforce the covenant against B3 (last buyer)?

Answer

A

YES!
Because a positive covenant’s burden can only pass in law if there is a mutual benefit (Halsall v Brizell).

B3 has a choice to use it. If she does, she must pay. If she does not pay, she must relinquish the benefit of it.

Question 2

Q

What is the solicitor’s duty when an omission ro register a land charge (for the lender) may result in substantial client loss, despite being an isolated incident?

Answer

A

The partner must explain the situation to the client (bank) and advise it to get independent legal advice.
- Inform the client of the omission.
- Explain the situation transparently.
- Advise the client to obtain independent legal advice.

Question 3

Q

If a positive covenant has been validly created in the transfer deed for the ‘maintenance of a shared driveway’ when selling half of a property.

And later, buyer (B1) sold the land adjoining to another person (B2) which contains equally this positive covenant and provided indemnity covenant to B1.

B2 later sold the same land to B3, who also provided an indemnity covenant to B2.

B3 now refuses to contribute toward the maintenance of a shared driveway, but continues to use it.

Can Landlord enforce the covenant against B1 (original covenantor)?

Answer

A

YES! (but NOT the best course of action as under mutual benefit B3 can be sued directly).

L can sue B1 bcs the chain of indemnity is not broken.

Question 4

Q

Test for Mutual Benefit (Halsall v Brizell)

Burden of POSITIVE COVENANT

Answer

A

1- the benefit and burden is conferred in the same transaction.
2- there is a close/clear link between the the burden and the benefit.
3- there is a genuine choice whether to accept the benefit.

Question 5

Q

Indemnity Covenant

Answer

A

Original covenantor may be able to recover any outlay it has to pay out for a breach by successor if it has an indemnity covenant.

As part of the sale process, the original covenantor (the seller) should require its successor (the buyer) to enter an indemnity covenant promising to comply with the covenant and to indemnify (reimburse) it for any loss incurred as a result of a breach.

An indemnity covenant should then be sought each time the burdened land is sold to create a chain of indemnitues.

Indemnity is a primary obli° and an agreement for a party to bear the costs of certain losses/liabilities suffered by another party in agreed circumstances.

Question 6

Q

Chain of indemnity

Answer

A

An indemnity covenant should be sought each time the burdened land is sold, directly with the new successor.
This creates a chain of indemnities.

Original covenantor (OC) can ONLY sue their direct successor.

There must be a ‘complete chain’ for indirect enforcement to work.

So each covenantor pays their direct successor.

Indemnity covenant does NOT pass the burden of the covenant, does NOT enable the current owner to be sued by anyone except their predecessor in title.

Question 7

Q

When will a chain of indemnity be broken

Answer

A

If the chain is not complete (did not enter in an indemnity covenant with direct successor)
If chain is complete because a party dies or made bankrupt.

Chain is only as strong as its weakest link!

Question 8

Q

Two parties enter into an agreement labelled as a ‘Licence to Occupy’.
The agreement contained a right of entry upon giving 24 hours notice for all reasonable purposes. It was granted for a term of 5 years and signed by both parties.

Has a legal lease been granted?

Answer

A

NO
A deed has not been validly executed.

However, It is a lease. Bcs does not have to be labelled as ‘lease’.

It is an equitable lease, the lease requirements are satisfied:
- certain duration
- estate contract
- exclusive possession indicator

Question 9

Q

L° of a REGISTERED land, sells semi-detached registered house (one of them is owned by the seller, 2nd is sold).

Restrictive covenant: ‘ Not to use the house for business purposes.’ has been entered into in conveyancing.

It has not been protected by notice (did not register).

Buyer gifted it to his child.

The covenant is now breached, the sold house is used for business purposes.

Has the Child notice of the covenant for the burden of it to run in equity?

Answer

A

YES!
A donee is someone who has been gifted or inherits the land.
The basic rule of priority applies to donees which means donees will take the land subject to all pre-existing interests, irrespective of whether they have been protected by registration.

Formalities to validly create: Agreement in writing, signed by the grantor.

The grantor (buyer) signed.
Child is not a purchaser for value. C is a donee.

Registered land: To protect a restrictive covenant, it must be protected by an entry in the charges register of the burdened land.

BUT because the new owner is a donee, Donee is deemed to have had notice of it under LRA 2002.

Question 10

Q

Registrable dispositions: legal interests

Answer

A

FORMALITIES
- deed
- registration (will not be legal until it is properly registered)

REGISTRABLE DISPOSITIONS
1- express legal easements
> charges register of burdened land: AND
> property register of dominant land

2- grant of a legal mortgage
> charges register of mortgaged land

3- landlord’s right of entry

4- transfer of registered freehold/leasehold

5- grant of lease for more than 7 years
> restriction in proprietorship register

Question 11

Q

Express Legal Easement - entries in the register

Answer

A

> charges register of burdened land: AND
property register of dominant land

Question 12

Q

Legal mortgage - entries in the register

Answer

A

Charges register of the mortgaged land

Can also enter as a ‘restriction’ in the proprietorship register.

Question 13

Q

Grant of lease for more than 7 years - entries in the register

Answer

A

Restriction in proprietorship register

Question 14

Q

Legal mortgages - entries in the register

Answer

A

Restriction in charges register (grant of mortgage)
Restriction in proprietorship register

Question 15

Q

Equitable interests protected by entry
OVERREACHING

Answer

A

both registered and unregistered land!

registered land: protected either by a notice or restriction
> as a restriction in the proprietorship register.
unregistered land: cannot be protected but overreaching must occur.

To move the interest of beneficiaries from the land into the monies.
Monies must be paid to 2 trustees min.

If not overreached, the Beneficiary’s interest remains in the land itself

Question 16

Q

A purchaser for valuable consideration will take land subject to, amongst other things, all EQUITABLE INTEREST protected by entry of a NOTICE in the CHARGES register:

What are these notices?

Answer

A

BURDENED LAND
- restrictive covenants
- estate contract
- equitable easement

Question 17

Q

What interests must be protected by entry of a NOTICE in the CHARGES register of the BURDENED land?

Answer

A

ALL EQUITABLE INTERESTS
EXCEPT INTEREST IN A TRUST OF LAND

Question 18

Q

Interests which MAY be protected by entry of a notice

Answer

A

Notice = appropriate to protect interest beyond a change of ownership.
The entry of the notice does not guarantee that the interest has been properly created to be valid.
It simply means that if the interest has been properly created, it will be binding.

legal leases between 3 to 7 years
restriction for a beneficiary of an interest in trust of land (for overreaching)

Question 19

Q

Equitable interests protected by entry of a notice in the charges register of the burdened land

Answer

A

legal leases between 3 to 7 years (not have to)
equitable leases
equitable easements
estate contracts
restrictive covenants affecting freehold land

Legal interests must be registered!

Question 20

Q

Overriding interests

Answer

A

legal leases of 7 years or less
equitable interest held by people in actual occupation
implied legal easements and profits a prendre

Question 21

Q

Overriding interests - equitable interest held by people in actual occupation

Answer

A

Conditions
1) interest in land
- equitable interest in a trust of land, equitable leases and options to purchase
2) holder in actual occupation of the land
- degree of permanence and continuity of presence; intentions and wishes of that person

Negated by
1- prolonged absence
(summer house secondary BUT not a hospitalisation and unintentional etc)
2- failure to disclose when reasonably expected to do so
3- occupation NOT obvious on a reasonably careful inspection and the buyer did not have actual knowledge
(occupation not obvious & interest not known)

Question 22

Q

Overriding interest - implied legal easements

Answer

A

Either one of them for validity:
1- new owner knew abt it; or
2- new owner did not know abt it, but obvious on a reasonable inspection of the land; or
3- it has been exercised within 12 months immediately before the disposition.

Implied legal easement also possible via Wheeldon v Burrows, common intention, s62 LPA.
Bcs implied easement takes its status from the doc it is implied into.

Question 23

Q

Lower airspace

Answer

A

The portion of airspace which is necessary for the landowner’s ordinary use and enjoyment.

In other words, something on your neighbour’s land that overhangs yours is likely to be a trespass as they are, by definition, using space that you could utilise.

Conversely, above that height, the owner has no greater rights than any other member of the public.

If a structure
- overhangs your property so that it is in the ‘lower airspace’, that is a trespass irrespective of whether damage is caused to your property.
- installed object is at the same height as the top floor of the house, it is a trespass as its protrudes into the lower airspace

Question 24

Q

S62 LPA EASEMENT

Answer

A

ѳ it implies an easement into a conveyance (ie. a deed)

1- GRANT to the claimant
2- PRIOR DIVERISITY of occupation of the DL and SL
3- an INFORMAL PERMISSION OR LICENCE must have been granted to the occupier of the DT to use the SL in some way
(permission when claimant was an existing tenant to preserve the sequence)
4- there must have been a CONVEYANCE (ie. transfer by deed or a legal lease) of the DL

Question 25

Q

Wheeldon v Burrows

Answer

A

1- grant of easement to the claimant
2- right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided
3- quasi-easement must have been continuous and apparent
4- the quasi-easement must be necessary for the reasonable enjoyment of the DL
5- the quasi-easement must be in use by the common owner at the date of the transfer or lease of the DL.

It will NOT be necessary for the reasonable use of the land to recognise easement of right of way if the other access was equally convenient.

It would be necessary for reasonable enjoyment if the access enhances the land and/or more convenient than the alternative access.

Question 26

Q

The owner of a registered property grants a legal mortgage over the property in favour of a lender as security for a loan.
The term of the mortgage is 20 years. The mortgage deed contains the following clause:
(i) The mortgage may not be redeemed for 16 years from the date of the mortgage.

In what situation the date of redemption most likely to be upheld?

Answer

A

If the property is a commercial freehold property.

Question 27

Q

A court may allow a lender to postpone the date of redemption if the property (_____)

Answer

A

is a FREEHOLD and is a part of COMMERCIAL bargain

(Knightsbridge Estates)

Question 28

Q

Who can apply to court regarding disputes involving co-owned land?

Answer

A

Anyone with an interest in the land can apply to the court for an order relating to it.

Any person who is a trustee of land or has an interest in property subject to a trust
of land may apply to the court for an order under s14 TOLATA:
- intentions of settlor
- purposes for which property is held
- welfare of any minor
- interests of the secured creditor of B

Usual order requested is an order for sale, which can be postponed for a period of time.

Question 29

Q

Postponement of the right to redeem

Answer

A

Courts look at clauses which postpone the legal date for redemption very closely and will not allow a clause which prevents redemption altogether.

Postponement can be allowed if it does not clog or fetter on the equity of redemption.

Upheld:
- commercial freehold

NOT upheld:
- residential freehold
- residential leasehold
- commercial lease (if prevents from getting back anything of any value) (eg. 6 weeks left to run)

Question 30

Q

Mortgage - option to purchase

Answer

A

if OP granted at the same time as the mortgage: INVALID
if OP granted at different time, in a subsequent transaction, totally independent of the mortgage: UPHELD
if OP granted at the same time but are in fact completely separate: UPHELD

Question 31

Q

What collateral advantage taken would be upheld in a mortgage?

Answer

A

SOLUS TIE

=> only if they end within the mortgage term

If for the duration of the mortgage term: valid.
If tie lasts for the lease term even if the loan is repaid: exceeds the mortgage term, invalid.

Question 32

Q

Unconscionable term - mortgage

Answer

A

Must be more than bad/hard bargains. Taking advantage of lender’s vulnerability.

1- ‘clear imbalance of bargaining power’ between parties
(eg. way over overall interest rate and premium included as a penalty)

2- term imposed in a ‘morally reprehensible manner’
(eg. the borrower in a vulnerable position threatened with homeless)

Question 33

Q

Interest rate on mortgages

Answer

A

Lender is entitled to charge a higher rate of interest than the market rate
(due to poor credit history or credit risk, short redemption, favourable term OR lender’s own financial difficulties),

BUT:
- If a penalty interest rate imposed in the event of borrower default far exceeds the lender’s losses in the circumstances then it will be VOID.
- if the imposition of the premium wipes out any chance of surplus sale proceeds for the borrower. (VOID)

If declared void, it won’t be enforceable on the borrower, but the remainder of the agreement will remain in force.

Question 34

Q

Equity of redemption

Protects borrower

Answer

A

equitable right to redeem supplements legal right to redeem
no postponement or prevention of redemption
no collateral advantages
no unconscionable terms

Question 35

Q

Mortgage of an equitable interest - formalities

Answer

A

in writing
signed by the grantor

Question 36

Q

If undue influence can be shown, the mortgage will be (_____)

Answer

A

UNENFORCEABLE against the party unduly inflienced. The means the lender is unable to exercise its rights to possess and power of sale over the land.

Question 37

Q

Lender’s right to possess

Answer

A

RIGHT of the lender, arises as soon as the mortgage is granted.
cannot exercise arbitrarily
self-help only possible for commercial building
must obtain a court order for mixed and residential property
if applied to the court, court can postpone the date of possession, for a reasonable period. But does not prevent lenders from exercising a power without court order. Applies only where the property is wholly or partly residential.

Question 38

Q

Lender’s right to sell
- when does it arise & become exercisable?

Answer

A

As this power of sale is a right of the lender, no court order is required.
The power of sale must, however, exist, have arisen and become exercisable.

ARISES
o express (mortgage term)
o implied (statutory right)
=> When money is due
- capital & interest mortgage: as soon as one portion of capital due
(one payment due suffice)
- interest only mortgage: legal redemption date (abt 6 months from start of mortgage - capital due until end of the loan term)

EXERCISABLE
Only when one of the criteria applies:
1- Notice requiring payment of the whole loan has been served by the lender and the
borrower has defaulted.
(no arrears necessary here)
2- Interest is unpaid and in arrears for at least 2 months.
(some interest outstanding, not outstanding for 2 months)
3- Some breach of other mortgage terms (insure or good repair).

Question 39

Q

Lenders duties exercising right to sale

Answer

A

duty to take reasonable care to obtain the
‘true market value’ or ‘proper price’ for the property.
perfection as to price not required
duty to take expert advice as to method of sale, marketing strategy and the reserved price
lender has an unfettered discretion as to when to sell

Question 40

Q

Common easements

Answer

A

right of way
right of drainage and other rights through pipelines
right of support
right to use sporting and leisure facilities
right of way
right to use the driveway
right to use land for recreational purposes

Question 41

Q

Disqualifying factors for easements

Answer

A

easement amounts to exclusive possession of the Servient tenement
cause additional, unavoidable expenditure by ST
must not depend on permission from ST

Question 42

Q

Why the burden of covenant would fail to pass to the buyer in equity?

Answer

A

POSITIVE COVENANT

(only passes in common law if mutual benefit)

Question 43

Q

Five years ago, a business needed to borrow money. The business granted a mortgage over the freehold of its office premises (“Property”) as security for the loan.

The ten-year repayment mortgage was granted by deed, included an express power of sale and the legal date of redemption was set for six months after the mortgage was granted.

The mortgagor has defaulted with several mortgage repayments and is now in three months’ worth of arrears.

Which of the following is the BEST advice to the lender about the remedy it should pursue?

Answer

A

APPLY FOR A COURT ORDER TO OBTAIN POSSESSION AND THEN SELL THE PROPERTY.

Possession as of right.
Better sell in vacate position.
The power to sale is both arisen and exercisable but not the best advice.

Question 44

Q

A buyer has recently purchased a house situated on the junction of a public road and a track, which leads to a local recreational park.
The buyer was informed by the seller that the house benefitted from a right of way along the track to the park.

On the day of moving in, neighbour stated that they owned the track and it could only be used when expressly permitted by the neighbour.
Is the right of way an easement?

Answer

A

NO - bcs permission to use it is required.

Question 45

Q

When would lender be put on notice of undue influence?

Answer

A

nature of relationship (influence or ascendancy -or-trust and confidence relationship)
AND the reason for the loan (borrower’s business venture)
AND not for joint benefit of borrower and spouse

Question 46

Q

Requirements for express legal easements

Answer

A

Legal easement
- for a certain term (fh/lh*)
- deed
- registration (on burdened land as charge)

IF NOT
can only be equitable!
To be express equitable: must comply with either:
- valid estate contract must exist
AND
- capable of specific performance

-

If equitable due to uncertain term:
- must be in writing
- signed by the grantor
AND
- capable of specific performance

Question 47

Q

sunken hot tubs - chattel or fixture

Answer

A

cannot be removed without destroying them
= FIXTURE

Question 48

Q

If a chattel cannot be removed from the land without destruction/demolition, it will be (___)

Answer

A

FIXTURE - bcs deemed to be intended to form part of the land.

TEST
– high degree of annexation (plumbed and wired in) –> gives presumption of fixture
– purpose of annexation –> intended to form part of the land

ALSO
conveyance automatically includes all fixtures in the property, unless the items are specifically excluded from the sale in the contract ‘schedule of inventory’

Question 49

Q

Fixture - chattel

Answer

A

o item reviewed objectively, if annexation is intended to be permanent and to afford a lasting improvement of the building = FIXTURE
- kitchen units
- incorporated into architectural design (purpose test)
- enhances the land/building
- cannot be removed from the land without destruction/demolition

o if the attachment is temporary and no more than is necessary for the item to be used and enjoyed = CHATTEL
- light fittings attached by screws
- purpose of annexation is better enjoyment of chattel as such
- moveable structure, able to rest on land by its own weight

Question 50

Q

Easement by prescription

(creates legal easement)

Answer

A

at least 20 years
by freeholders (or successive fh)
continuous enjoyment (1 year or more means interruption)
as a right: without force, without secrecy, without permission

Question 51

Q

Gift of unregistered freehold property to a donee, legal title passes:

Answer

A

DEED (legal title passes), then it must be
registered (within 2 months)
Trigger compulsory registration: gift, sale, first legal mortgage over 7 years to run.
New owner would have to register within 2 months of completion of deed (for legal title to not to revert back to the seller).

Question 52

Q

Who executes a deed?

Answer

A

Grantor / seller

Question 53

Q

Compulsory registration triggering events:

Answer

A

Transfer of the freehold estate by sale, gift, or court order.
Grant of a lease for a term of more than seven years to run.
Assignment (transfer) of a lease of unregistered land with more than seven years to run.
An assent, vesting assent or vesting deed which is a disposition of the freehold or a leasehold with more than seven years to run (this refers mainly to transfers on death).
The grant of a lease to take effect in possession more than three months after the date of the grant (ie future leases).
A first legal mortgage of the freehold or of a leasehold with more than seven years to run.

Question 54

Q

Mortgage - priorities

Answer

A

priority between registered charges: order in which entered on the register.
(if entered at the same tile, application for registration will specify the order)
legal mortgage prevails equitable mortgages.
priority between equitable mortgages: order of creation.
if equitable mortgage is later protected by entering of a notice in the charges register, it will take priority over subsequent legal mortgage.
But protection does not effect order of priority between equitable mortgages (order creation)

Question 55

Q

basic rule of priority

Answer

A

a new owner of the burdened land who is a donee would be automatically bound by any equitable interests regardless of whether they have been protected or not.
APPLIES ONLY TO REGISTERED LAND.

For unregistered land: test is NOT a purchaser for money or money’s worth

Question 56

Q

If a head-lease is forfeited, any sub-lease (____)

Answer

A

If a head-lease is forfeited, any sub-lease will also be destroyed automatically.

Subtenant can also apply for relief within a reasonable time after peaceable re-entry.

Question 57

Q

A right to forfeit can be waived if the landlord (_____)

Answer

A

if the landlord knows about the breach and
then does some unequivocal act recognising the continued existence of the lease

Question 58

Q

Reasonable time to remedy to escape forfeiture for non-rent covenant?

Question 59

Q

Forfeiture - Waiver’s operation

Answer

A

If the landlord wishes to forfeit, it must not have waived its right to forfeit.

It will be waived if L is aware and does some unequivocal act recognising the continued existence of the lease.

Other remedies remain, albeit forfeiture is waived.
- Continuing breaches waiver only lasts until the next day breach continues, L can choose to reject payments and forfeit the lease (eg. repair, immoral/illegal use).
- Permanent waiver for non-continuing breaches (inc. payment of rent).

Question 60

Q

FORFEITURE FOR NON-RENT COVENANTS

Answer

A

Before the landlord can forfeit they must first serve notice upon the tenant under LPA 1925, s 146.

Notice requires it to be remedied within a reasonable time (3 months) and L can demand compensation in money.

Question 61

Q

FORFEITURE FOR RENT COVENANTS IN LEASES - incorporation

Answer

A

for legal leases – there must be express forfeiture clause (will NEVER be implied)
for equitable leases – right to forfeit for no- payment of rent is implied

FORMAL DEMAND
=> on the day when it becomes payable, between the hours of sunrise and sunset
- lease expressly waives this requirement (unless formal demand requirement misapplied); or
- at least 6 months’ rent is in areas & there are insufficient distrainable

RELIEF
* before the court order - T pays onto court, proceedings are stayed.
* at or after court order - discretion of court.

MUST apply for relied within 6 months of re-entry.

Question 62

Q

excluded assignment

Answer

A

An assignment in breach of a covenant of a tenancy or by operation of law.

A tenant who has made an excluded assignment is not released from the tenant covenants until the next assignment that is not an excluded assignment.

Question 63

Q

If there is an express declaration as to equitable interest to co-owners, it (___)

Answer

A

PREVAILS
over potential TiC due to contribution to purchase price.

Question 64

Q

A couple (A and B) were the joint legal owners and the joint equitable owners of a house. They orally agreed that A would sell, and that B would buy, A’s interest in the house for £150,000.

Which one of the following statements is a correct description of the current co-ownership of the house?

Answer

A

SEVERANCE BY MUTUAL AGREEMENT
=> A & B are joint legal owners. They each own one-half of the equitable interest.

All equitable JTs agree to change basis on which to hold equitable title, all JTs agree that the severed HR will sell their share to others.

Severance takes effect immediately at the point where severance is agreed.

Parties can still change their mind if there is no agreement but their equitable interest will be severed.

When severance occurs, legal title will still be hold by the same legal owners.
Only equitable title will change. After sevrance, equitable title will be helped as TiC holding equal shares.

Answer 64

A

client money

Answer 65

A

NOT client money

Answer 66

A

client money

Answer 67

A

NOT client money

Answer 68

A

1- Conduct a local authority search to ascertain legal or planning implications related to property changes, [such as 100 y.o. tree removal].
2- Make enquiries of the seller to obtain information about disputes with neighbours and reasons for property alterations.

Answer 69

A

basic assumptions
* premises are vacant and available
* there is a willing landlord and a willing tenant
* T complied with all covenants
* terms of the hypothetical lease are the same terms of the actual lease
* if damaged or destroyed, the premises have been repaired or rebuilt

common disregards
* ignore what the tenant has done voluntarily and not as an obligation of the lease
* Goodwill attached to the tenant’s business
* tenant’s improvements

The new rent is documented in a rent review memorandum.

Answer 70

A

extent of premises
length of term & break clauses
repairing obligation
rights to assign or underlet
permitted use
right to alter the premises and restoring to its original state

Answer 71

A

CPSE1 enquiries (like for freehold); but also
CPSE3 which are specific to grant of a lease [grant of a new letting].
also all other searches as they would if they would be buying freehold

Exchange of agreement : usually adopting Law Society Formula B.

Answer 72

A

L’s S° prepares and send:
- completion statement, detailing any money due on completion
and
- prepares lease original and counterpart (and obtain signature).

T’s S° receive funds to complete and obtain T’s signature.

Completion statement: The solicitor must apportion the yearly rent, insurance rent and service charge on a daily basis.

Answer 73

A

FULL repairing obligation.

Lease of whole => premises refer to the title and postal address. Tenant is responsible for the interior, exterior and structural repair.

Lease of part => premises refer to specific place lent. Demise is all except structure and exterior. Tenant is only responsible for interior repair.

Common parts are L’s responsibility, but they will collectively recover the costs from tenants through service charge payments.

Answer 74

A

Commercial landlord will almost always be responsible for the insurance of the building.

For FRI leases, the cost of insurance will be recovered from the tenant under the lease.

in a lease of whole: sole tenant will refund the L the whole of the insurance premium after being insured by the L.
in a lease of part: L insures the whole and each tenant refunds the proportionate part.

Answer 75

A

Licence for alterations

Answer 76

A

T has a statutory right to carry out improvements: even if absolute covenant.

PROCEDURE LTA27
(i) serve NOTICE on the L of intention to carry out improvements

(ii) if L objects, T can apply for court’s permission

(iii) Court will give permission if the improvements: [conditions]
- add to the letting value of the premises
- reasonable & suitable to the character of the property
- do not diminish value of the let premises or any other premises belonging to L

(iv) If L does not object within 3 months, T may go ahead and carry out the works.

(v) If L offers to carry out the improvement works and increase the rent,
T doesn’t have to agree BUT if they don’t, T cannot ask the court for permission.

Answer 77

A

NO

If L decides to give consent, L cannot charge a lump sum nor increase the rent UNLESS the change of use requires structural alterations; in this case, L may charge a sump sum or increase the rent.

But there are statutory restrictions - CODE FOR LEASING BUSINESS PREMISES

Answer 78

A

lease should only restrict alterations /change of use insofar as necessary to protect the value of the premises and adjoining/neighbouring premises of the L.
Code requires L to at least give the T a fully qualified covenant for internal non-structural alterations in a lease of part and to be able to carry out non-structural internal alterations to be carried out without consent.
if the L require any alterations of reinstatement at the expiry of the lease, it should be made clear in the heads of terms. Otherwise, the lease may only require this if reasonable.

Answer 79

A

LANDLORD

L is party to licence to assign
and
If L agrees to vary the lease for the A, a deed of variation is necessary.

Answer 80

A

all 3 parties at completion.

Assignee drafts the deed of assignment: if a registered lease, deed will be in form TR1.

Answer 81

A

arrange to submit and pay appropriate SDLT and LTT [over 5y]
register assignment
send formal notice of assignment to L’s S

Answer 82

A

lease over 7 years = need only provide official copy of registered leasehold title
7 years or less = must provide an official copy of the L’s freehold title together with a copy of the lease.

Answer 83

A

Assignment = OS1

Subletting [Against T’s registered leasehold title]
OS1 - whole
OS2 - part of lease

SDLT must be paid within 14 days of “the effective date”. This is usually completion, but will be earlier if the tenant goes into occupation.

Answer 84

A

following an assignment or underletting, tenant will be required to give the L formal notice within a month of completion of transaction.

Answer 85

A

1- must be a tenancy / Leasehold interest [periodic or fixed]

2- must be occupied by the tenant
[If premises are vacated or underlet, T loses entitlement for SoT. (if underlet part, only loses entitlement for that part)]

3- must be occupied only for business purposes

4- NOT /ie. excluded tenancies

Answer 86

A

sunday school free of charge
tenant of a house taking a small nb of lodgers without profit

Answer 87

A

agricultural tenancies
mining leases
service tenancies (ie. lease granted as part of a tenant’s employment)
fixed term tenancies of 6 months or less (this could become protected if the tenant has been in occupation for 12 months or above, whether through successive tenancies or renewable beyond 6 months)

Answer 88

A

Applies only TO FIXED TERM tenancies.

step 1 - landlord must serve a warning notice on the tenant in a prescribed form. It must be served before the parties complete the lease.

step 2 - tenant must provide a declaration in prescribed form to the landlord before completing the lease.
- If lease completion is at least 14 days from the date of the warning notice then this can be a simple signed declaration.
- If lease completion is less than 14 days away, then the tenant must provide a statutory declaration (declared before an independent solicitor).

step 3 - The lease must contain reference to both the notice and declaration (or statutory declaration) of contracting out. Failure to correctly carry out the procedure allows enjoying SoT.

Answer 89

A

tenant has the right to stay in occupation. This is known as ‘holding over’.

The landlord cannot evict the tenant and the tenant’s occupation can only be brought to an end by certain methods allowed by the LTA 1954.

The rent will stay the same during the period of holding over, so rent review is only a limited solution.
The tenant pays the same rent until the lease is renewed.

Answer 90

A

1- forfeit the lease if there has been a breach of tenant’s covenants and the lease allows this. (security of tenure provisions do not prevent the landlord forfeiting the lease)

2- serve a s25 notice, indicating their intention whether to recover the premises or offer a renewal lease.
(hostile notice refers to recovering the premises, friendly notice refers to lease renewal.)

Answer 91

A

1- simply to vacate the premises at the end of the contractual term
2- to surrender the lease with the landlord’s agreement
3- for a periodic tenancy, serve a notice to quit to bring the tenancy to an end
4- serve a s26 notice to request a new tenancy
5- serve a s27 notice to leave the premises

Answer 92

A

The date of termination must be on or after the date on which the contractual term ends.

A section 25 notice must be served no less than 6 months and no more than 12 months before the date of termination.

Notice must be ithe n prescribed form by statute.

Answer 93

A

(a) persistent and serious breach by the tenant of a repairing covenant (D + NC)

(b) persistent delay in paying rent (D + NC)

(c) serious and persistent other breach of tenant covenants (D + NC)

(d) landlord offers suitable alternative accommodation (M + NC)

(e) landlord intends to demolish or reconstruct the premises or carry out substantial construction works which require possession (M + C)

(f) landlord intends to occupy the premises for itself (M + C)

to repossess the premises, L must own the reversion for min 5 years before the date of termination.

Answer 94

A

at 1x the rateable value if the business has occupied the premises for less than 14 years
at 2x the rateable value if the business has occupied the premises for 14 years or more
=> if less than 5 years lease occupation, can contract out from compensation

Rateable value = based on annual rental value of the premises and fixed by the local authority for the purpose of the calculating business rates due for premises.
Qualifying time period = term occupied or current tenant taken over the same business with transfer of goodwill

Answer 95

A

Either party may apply to the court at any time after s25 notice has been served, the deadline is the date of termination specified in the notice.
After a hostile s25 notice, (s29) order of the court for termination of current tenancy is required.

Deadline to apply to court: day before the proposed commencement date of the new lease.

Answer 96

A

1- protected tenancy originally granted for a term of more than 1 year.

2- Min notice period of 6 months and max notice period is 12 months from the proposed commencement date of renewal lease (notice doesn’t expire like s25 notice on termination date)

3- landlord has 2 months from the section 26 notice to serve a counter-notice (oppose) on one or more statutory grounds

Answer 97

A

The court can grant a term up to 15 years, the rent will be open market rent, and other terms are determined having regard to the terms of current tenancy and relevant circumstances by the court.

If T is not happy with the terms determined by the court or changed simply its mind, T has 14 days to ask the court to revoke the court order: if asked court must agree and T will have no right to renew.

Both orders (revoke or terminate) brings tenancy to an end 3 months and 21 days after the date of the order.
- 21 days from the date of the order is the time allowed for appeal.

If new lease is granted by the court order, new lease starts the day after the termination of existing lease.

Answer 98

A

Limited to rent due in the 6 years before the issue of proceedings; earlier outstanding rent is irrecoverable.

Answer 99

A

It is a self-help remedy
* premises are purely commercial
* a min 7 days principal rent is owed (cannot be used to recover service charge or insurance premium or any other sum BUT does include VAT and interest)
* lease has not been forfeited

Answer 100

A

1- L must appoint an enforcement agent (certificate of court or exempt eg. police officer)

2- 7 clear days’ notice must be given of the intention to enter to premises (clear days exclude bank holidays and Sundays)

3- notice must include details: amount due, how to pay it and contact of enforcement officers

4- if the notice expires without repayment of the debt – the enforcement agent can enter the premises and take control of the goods belonging to T up to the value of the debt

5- L must serve a further 7 clear days’ notice if it intends to sell any of the seized goods

Answer 101

A

For non-payment of rent, the L is entitled to forfeit as soon as the lease allows.

For any other breach of T’s obligations, L must serve a s146 LPA 1925 notice.

Forfeiture can be achieved by peaceable re-entry or by application to court for an order for forfeiture.

Answer 102

A

After L serving a s146 notice, if Repairs Act conditions are satisfied under LPRA 1938, T has 28 days to serve a counter-notice.

This means that the landlord must get leave from the court before proceeding.

Conditions:
- lease term is for 7 years or more
- at least 3 years term left to run

L must advise the tenants of these rights in the s146 notice.

Damages for breach of repairing obligation: L cannot issue proceedings for damages for a repairing obligation until it served a s146 notice and given the T 28 days to serve a counter-notice.

Measure of damages = loss of value to the landlord’s reversion (not the cost of putting the premises into full repair)

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