Landlord and Tenant

Question 1

What information do you include within a rent review or lease renewal

Answer 1

Agreed terms of engagement
Understanding of client objectives
Copy of existing lease and additional information - lease plans, deeds of variation
Copies of licences such as alterations and assignment and any deeds of variation
Contact details of the tenant or landlord to arrange inspection
Copy of the management file - historic rent data and general background

Question 2

At the start of instruction, you should check what?

Answer 2

You are competent
No personal interest or conflict of interest
Include confirmation of your complaint handling procedure

Question 3

provide examples of what fees for lease renewal or Rent review can be based on

Answer 3

Percentage of the new rent agreed
Percentage of the saving made from the quoting rent.
Fix fee
Hourly rate
Incentive fee

Question 4

What does Without Prejudice mean?

Answer 4

means the opposing party cannot rely upon any documentation or discussions held which are labelled ‘without prejudice’ where representation is made in litigation to a Judicial body.

Used within a rent review - Correspondence cannot be shown to the arbitration/ independent expert

Question 5

Difference between a lease and licence

Answer 5

Licence passes no interest in land but make lawful what would otherwise be unlawful - Murdoch 1998

e.g. right to park a car

Question 6

What is a licence?

Answer 6

Right to enter a property
personal arrangement between licensor and licensee
licensee acquires no interest in the property
the personal rights which is terminated by either party.

Question 7

What are the four requirements of a lease?

Answer 7

Exclusive Occupation
payment of rent
duration of specified term
If more than 3 years the - term must be in writing, signed, and registered as a deed.

Question 8

three main differences between lease and licence?

Answer 8

Lease provides the occupier with an estate on the relevant land. A licence is permission to make it lawful for them to use the land.
Lease can be assigned. Licence normally a personal right that cannot be assigned.
Lease cannot be terminated until it expires or a break clause. A licence can be revoked at any time.

Question 9

What is a tenancy at will?

Answer 9

Form of licence - written agreement for an unspecified time in which the landlord may evict the tenant at any time.

Not a legal interest in land and with no renewal right.

Question 10

When would you use a tenancy at will?

Answer 10

allowing a tenant early entry for fit out works
OR, whilst the tenant is agreeing a new contracted out of the landlord and tenant act 1954 lease after expiry.

Question 11

What is a Wayleave

Answer 11

temporary right and recieves an annual payment - such as provides a right for electrical company to install and retain their apperatus.

Question 12

What are easements?

Answer 12

Permanent right and receive a capital payment
Capable of being registered at the land registry
allows a right enjoyed by one party over the land of another

Question 13

what are the four usual assumptions in a rent review?

Answer 13

Property available to let on the open market by a willing tenant and landlord for a term of years.
Property is fit and available for occupation
All covenants observed by landlord and tenant.
property may be used for purpose set out in the lease.

Question 14

What are the three usual disregards in a rent review?

Answer 14

effect of goodwill on tenants occupation
ignore goodwill attached to the property
tenants improvements if landlord consent has been granted.

Question 15

what is the leading case for time of the essence.

Answer 15

United scientific holdings vs Burnley borough council 1977

Question 16

Give examples of hierarchy of evidence in a rent review or lease renewal

Answer 16

Open market letting
Rent reviews & Lease renewals
Independent expert determinations
Arbitrators determination
Sale and leasebacks
surrender and renewals

Question 17

what is a Calderbank letter used for?

Answer 17

achieve early resolution of a dispute and prevent costs from escalating.
Letter served must be headed ‘Without prejudice save as to costs’ and not marked ‘Subject to cotnract’
Tool for influencing costs and negotations in rent reviews as the losing side will have to pay costs.

Question 18

what must a calderbank letter set out?

Answer 18

All the terms to settle the dispute and a time limit in which the other party must accept the offer, often 21 days.

Must be a genuine offer to settle and not simply a mechanism to influence costs and or pressure the other party.

Question 19

What is the calderbank mechanism in a lease renewal?

Answer 19

Part 36 of the civil procedure rules 1998 must be in writing and remain open for acceptance for a minimum 21 days.

Question 20

Guidance note of an independent expert

Answer 20

RICS Guidance note on independent expert determination 2016

Question 21

explain the characteristics of an independent expert

Answer 21

Detailed Knowledge of the market as a valuer
Appointed by the president of the RICS by the Dispute Resolution service
Can make their own investigations and own opinion of market rent
Bound by terms of the lease
no appeal against their decision but can be sued for negligence
Good when lack of market comparables
no power to order disclosure

Question 22

explain the characteristics of an Arbitrator

Answer 22

Act under the Arbitration Act 1996
Can be appointed by the president of the RICS using the dispute resolution service
Format decided by arbitrator to include statement of facts and timetable for submission
Can decide how to hear the case and order costs
Immunity from negligence and can order disclosure

Question 23

What are the three grounds to appeal an arbitrators decision underthe High Court within 28 days?

Answer 23

A Challange to the tribunals jurisdiction
on a point of law
Serious irregularity

Question 24

What is disclosure?

Answer 24

entitles a party to a rent review to obtain details of the other side’s rental evidence by ordering disclosure of the contents at the decision of an arbitrator

However - without prejudice makes a document is legally privileged so it is protected against disclosure.

Question 25

In a falling market what would the landlord prefer? In a rising market what would the landlord prefer?

Answer 25

Falling market - arbitrator Rising Market - Independent Expert Vice versa for Tenant

Question 26

What are the 6 basic elements to gain protection under the landlord and tenant act of 1954 and in what section?

Answer 26

Section 23 1 - It is a tenancy 2- Must be used for business 3- There must be an occupation of at least part of the premises by the tenant 4- Occupancy for more than 6 months 5- must not be an exempt tenancy such as tenancy at will 6- there must be a competent landlord ( freeholder or superior tenant with more than 14 months to run)

Question 27

What is section 24 of the landlord and tenant act 1954

Answer 27

The tenancy does not expire by effluxion of time but only when one party serves a notice

Question 28

What is section 25 of the landlord and tenant act 1954

Answer 28

Landlords notice served with date not more than 12 months and no less than 6 months before the expiry none hostile notice - the landlord does not oppose a new lease Hostile notice - where the landlord opposes a new lease and the relevant grounds must be stated.

Question 29

Name some of the contents within a section 25 notice

Answer 29

name and address of the landlord and tenant Address of the property notice of the date to end the tenancy confirmation whether a new lease is to be opposed or granted confirmation of the date of response required. landlords proposal for a new tenancy to include the proposed rent - if friendly or if hostile the grounds for opposition to a new lease.

Question 30

What is section 26 of the landlord and tenant act 1954

Answer 30

Tenants notice to request a new tenancy beginning with a date not more than 12 months and not less than 6 months must be in a prescribed form must state the tenants proposal for a new lease to include the proposed rent if landlord opposes a counter notice must be served within 2 months

Question 31

What is section 27 of the landlord and tenant act 1954

Answer 31

Tenants notice to severed if they wish to lease with a 3 months notice after lease expiry if the tenant vacates prior to lease expiry then no notice needs to be served if the property is vacant

Question 32

What happened in Esselte AB v Pearl Assurance plc 1997?

Answer 32

the tenant paid rent up to the lease expiry date rather than the date specified in the section 27 notice court of appeal held that the tenant ceased to occupy the property for the purposes of its business before the expiry of the contractual term, the tenancy came to an end at the expiry of the term and not on the later expiry of notice given under section 27 of the 1954 Act.

Question 33

What are the seven grounds for opposition to a new lease under section 30?

Answer 33

A - breach of repairing covenant B - persistent delay in paying rent C - other substantial breach D - provide a suitable alternative accommodation E - Uneconomic sub division F - Demolition or reconstruction G - Owner Occupation

Question 34

Which grounds of section 30 are compensation payable?

Answer 34

E - Economic sub division F - Demolition or reconstruction G - Owner occupation

Question 35

What is section 37 of the landlord and tenant act 1954?

Answer 35

Landlord obtains possession due to successful section 25 application the tenant is due compensation for discturbance if the lease is granted after 1 April 1990 if the tenant has not breached terms of the lease.

Question 36

What are sections 32-35 of the landlord and tenant act 1954?

Answer 36

Post 1st June 2004, the regulatory reform order 2003 states a maximum 15 year term may be granted by the court Must be market rent ignore previous occupation and goodwill as well as any landlord improvements carried out by the tenant in the last 21 years.