Landlord and tenant Flashcards
What are the principles of property law?
English law:
criminal law (crime and punishment)
civil law (disputes and compensation)
Civic law:
law of tort (liability for loss or harm) /
law of contract (enforcing agreements)
land law (real property rights)
L&T law comes under law of contract/land law
Sources:
statute
case law
(bylaws)
Courts:
County courts (civil cases)
Court of Appeal
Which Landlord and Tenant Acts govern commercial property?
LTA54 business tenancies
LTA27 alterations, dilapidations
LTA88 LL consents
LTA95 AGAs
LPA25 estates/interests, breach, notices
What does the Landlord and Tenant Act 1954 Part II relate to?
s23: defines a tenancy to which the Act applies
- Businesses: widely defined to inc a trade of profession, and “any activity carried on by a body of persons, whether corporate or unincorporated”
Business tenancy if fixed term is:
- More than 6 months or tenant has been in occupation for more than 12 months
- Exclusive occupation
- The exclusion of others
- For the purpose of a business
s24: security of tenure
s38: contracting out
s25: LL renewal or termination
s26: T renewal
s27: T termination
s28: by agreement
s29/s31-36: court granting of new tenancy
s30: grounds for regaining possession
s37: compensation on no-fault grounds
s40: duty to give information
What are the main aspects of the Law of Property Act 1925?
freehold/leasehold
deed:
intended
validly executed (signed and witnessed)
delivered as deed (served/handed other party)
5 interests:
easement or right over land
rentcharge
charge by mortgage
other charge
rights of entry
(“third party rights”, binding on purchaser)
s146 breach other than non-payment of rent
s196 notices
What does LT54 s23 relate to?
s23: defines a tenancy to which the Act applies
- Businesses: widely defined to inc a trade of profession, and “any activity carried on by a body of persons, whether corporate or unincorporated”
Business tenancy if fixed term is:
- More than 6 months or tenant has been in occupation for more than 12 months
- Exclusive occupation
- The exclusion of others
- For the purpose of a business
What does LTA54 s24 relate to?
s24: Security of tenure:
- Ts have the right to remain in occ at end of contractual term of lease
- T have the right to apply to court for the grant of a new lease (usually lease renewals by agreement between L&T rather than court)
- Can be excluded by agreement (usually if LL intends to redevelop/v short term lease/underletting in larger bdg)
- If remain, trespassing, LL applies for court order
What does LTA54 s25 relate to?
s25:
- “hostile” if not proposing to renew (must specify ground)
- No earlier than 12 months before contractual end
- End date 6 months from date of giving notice or end date of lease (no later than 12 months)
- Proposed terms for renewal (length of term and rent)
- Can’t be served after a T has served s26
- T to serve counter notice within 2 months
- Where T does not respond, tenancy will continue on proposed new terms or, if hostile, end on date specified
Can’t be withdrawn once served (unless change in LL)
What does LTA54 s26 relate to?
s26:
- By T to request renewal
- No earlier than 12 months before contractual end
- End date 6 months from notice/end date of lease
- Can’t be served after a s25
- Proposed terms for renewal (length of term, rent)
- If LL wants to oppose must serve counter notice within 2 months giving grounds
- Either party can apply to court for new tenancy/interim rent before termination date set out in notice (can agree to extend)
A request for a new tenancy made under section 26 of the Landlord and Tenant Act 1954 (LTA 1954) cannot be withdrawn once served
Can’t serve S27 after.
What does LTA54 s27 relate to?
s27:
- T giving notice
- At least 3 months before tenancy end date
- Or 3 months from notice if holding over
- No right to remain on expiry of notice
Can’t withdraw once served.
Can serve S27 after s25, earlier S27 date will count?
What does LTA54 s28 relate to?
s28: renewal of tenancies by agreement (results in existing tenancy losing protection)
What does LTA54 s29 relate to?
s29: timescales for application to court
What does LTA54 s30 relate to?
s30 grounds for regaining possession:
LLs can only object to lease renewal/regain possession on certain grounds
a) breach of repairing covenant
b) persistent delay in paying rent
c) other substantial breach of lease
d) if LL provides suitable alt accom
e) uneconomic subdivision (if LL could get more rent from letting as whole)
f) demolition/reconstruction (must prove intention)
g) owner occupation (must have owned over 5 years and prove intention)
LL must pay T compensation for e-g:
1 x RV if occupied less than 14 years
2 x RV if occupied more than 14 years
What does LTA54 s32 relate to?
s32: property to be comprised in the new tenancy
What does LTA54 s33 relate to?
s33: court has power to grant new tenancy for a term not exceeding 15 years
What does LTA54 s34 relate to?
s34: assumptions to be made and the matters to be disregarded in assessing the new rent under the new tenancy
market rent
disregarding goodwill, improvements within 21 years
What does LTA54 s35 relate to?
s35: other terms of the new tenancy
What does LTA54 s36 relate to?
s36: carrying out the order for the new tenancy
What does LTA54 s37 relate to?
s37: compensation where new tenancy not granted on certain grounds
LL must pay T compensation for e-g:
1 x RV if occupied less than 14 years
2 x RV if occupied more than 14 years
What does LTA54 s38 relate to?
s38: contracting out of sections 24 to 28
What does LTA54 s40 relate to?
s40: duty to give information
- Sometimes prudent to serve at same time as e.g. s25
- Request info about occupation and sub-tenancies/superior LL
What does LTA54 s43 relate to?
s43: defines a tenancy to which the Act does not apply
What does LTA54 s44 relate to?
s44: competent landlord
The “competent landlord”, and therefore the party that is entitled to serve such notice on tenants, is the person with the legal estate. If you have completed a property purchase which has not yet been registered, you will not yet be the owner of the legal estate (only the beneficial estate).
freeholder or superior T with unexpired term of over 14 months (CHECK IF CORRECT
What is “holding over”?
The LTA1954 Act gives commercial tenants the right to keep occupying a property on the same terms as expressed in the original lease if the statutory renewal process was not triggered by the lease’s expiry date. The lease will become a periodic tenancy and the tenants will need to give 3 months’ notice prior to vacating the premises.
If the landlord wishes to grant a new lease then a separate letter should be sent to the tenant indicating that the landlord is willing to delay possession proceedings for a short time whilst new lease terms are negotiated. It is best to specify a date.
How can a lease be surrendered?
By agreement, if in both parties’ interests.
LL doesn’t have to act reasonably.
- Express surrender in writing.
If lease by deed (3 years or more must be), deed of surrender.
Lease comes to an end on date of surrender deed. Can enter Agreement to Surrender to fix date in future.
Set out conditions e.g. premium.
May need to check mortgage (has to be cleared before surrender).
Alternatives inc break, assignment/sub-letting. - Implied surrender by conduct.
Surrender by operation of law.
Both T hands back property (e.g. keys), LL accepts. (T can’t just send back keys).
LL accepts by e.g. enter property and taking control (but securing/changing locks doesn’t count).
Inferred by LL grants TaW to existing T.
Rights of undertenants with security under LTA54 survive, even if underlease was in breach, undertenant becomes T of LL and pays rent and performs covenants in underlease.
Outgoing T and guarantor remain liable for breaches up to date of surrender, inc dilaps.
Commonly, surrender deed inc premium in exchange for being released from liabilities.
If T sends back keys, LL should take legal advice quickly and make clear immediately lease not surrendered.
If a landlord stops invoices, but continues to accept rent, could a contracted out tenant gain business tenancy rights?
In some cases, as long as the tenant is paying rent and has a good history with the landlord, courts may rule that the lease has become a periodic lease. This is particularly likely if there are ongoing negotiations with the landlord regarding a potential lease renewal. Tenants who are in rental negotiations should be cautious of signing written tenancy at will which would prevent them from being able to make a claim to periodic tenancy and protection from the Act while allowing the landlord to keep taking rent.
The landlord can also consider referring to s1 of the Landlord and Tenant Act 1730 (yes, really!) which entitles the landlord to claim twice the current rent from a tenant who remains in occupation after the lease has expired.
How would you deal with a business tenant who didn’t vacate on notice expiry?
If hostile s25 notice served, apply to court. Make sure invoices stopped and rent not accepted.
How would you deal with a contracted out tenant who didn’t vacate at the end of the lease despite being given notice?
If an unprotected tenant remains in occupation, then the landlord will have the right to take back possession, including re-entering peaceably by changing the locks.
If an unprotected tenant was asked to leave the premises by the landlord and refuses, the landlord should have put in place a rent stop. However, the landlord will be able to claim for what are known as “mesne” profits for the duration that the tenant remains in the property after the lease expires in circumstances that do not create a tenancy at will or periodic tenancy. Mesne profits would equate to the letting value of the premises, so could exceed what a tenant was paying in rent. Tenants can also be held liable for losses incurred by the landlord during their post-lease occupation as well as the cost of any damages to the property.
The landlord can also consider referring to s1 of the Landlord and Tenant Act 1730 (yes, really!) which entitles the landlord to claim twice the current rent from a tenant who remains in occupation after the lease has expired.
Can you forfeit a lease which is “holding over”?
If within LTA54, continues on same terms. If forfeiture clause, yes.
If there is no forfeiture clause, then the landlord will have to rely on the Common Law right to forfeiture, which is only available for the non-payment of rent.
If contracted out, if new lease being negotiated, T “tenancy at will” - no right to forfeit but TaW can be terminated by either party at any time.
If parties cannot agree new lease terms, court has right to determine - there is a holding over until agreed/determined.
If contracted out and no negotiations, e.g. continue to pay rent, effectively a new lease and terms of old lease inc forfeiture clause will no longer apply. The Landlord may still forfeit the lease but only for non-payment of rent and on the basis of the common law right to forfeit.
What is the structure of leases and other agreements e.g. licences?
Date, Landlord, Tenant, Property
Summary
Definitions
T obligations
LL obligations
Schedules
Plans
How do you carry out a lease renewal?
Clarify instruction/strategy
Conflict of interest & AML checks on client and T
ToE
Read lease docs inc licence for alterations/SoC,
premises/fixtures
within LTA54?, diarise timescales
Check if in arrears, Companies House, Google
Research inc comps
Inspection, check for breaches, improvements (disregard within 21 years and goodwill s34)
discuss renewal with T
Valuation,
recommend lease terms and rent and alternatives
Client approval
Issue HoTs/serve s25 6-12 months
Contact T, refer to Code and pro advice
T to respond within 2 months
Negotiate, update client
If approaching expiry, advise client on risks
if contracted out, TaW and “mesne profits”
if protected, consider court interim rent
Agree terms
Client approval
Instruct sols
See to completion
Update records inc finance
Diarise next milestone
How do you carry out a rent review?
Clarify instruction/strategy
Conflict of interest & AML checks on client and T
ToE
Read lease docs inc licence for alterations/SoC,
premises/fixtures
basis, assumptions, disregards, time of essence
diarise timescales
ADR if cannot agree
Check if in arrears, Companies House, Google
Research inc comps
Issue RR notice to inspect
Inspection, check for breaches, improvements
discuss review with T
Valuation, recommend rent and ADR
Client approval
Issue RR notice with proposed rent
Contact T, encourage pro advice
Negotiate, update client
Consider Calderbank/ADR
Agree terms
Client approval
Complete RR memo
inc in lease docs
Update records inc finance
Diarise next milestone
How would you advise on a Calderbank letter?
Calderbank v Calderbank 1975
- A party to an arbitration may seek to protect himself against liability for costs by making an unconditional offer to settle on specified terms, and expressly reserving the right to refer the offer to the arbitrator after he has made his award except for costs
- For a Calderbank offer to be effective it must contain:
an unconditional written offer to settle the rent review;
a reasonable proposal regarding costs incurred up to the date of the offer (usual to propose that each party bears own costs plus 50% of arbitrator’s fees);
a statement that is made “without prejudice save as to costs”
- Either or both parties may make an offer
- The party making the offer or both parties should ask the arbitrator to make an award which will be final except for costs
- If the LL makes a Calderbank offer that the T does not accept and the arbitrator determines a rent equal to or higher than the LL’s offer then the arbitrator should award that the T pays LL’s costs and the arbitrator’s fees from the date the offer ought reasonably to have been excepted, and vice versa
Can use for independent expert
Name some case law on lease/licence.
Street v Mountford, 1985 (the Test Case)
- Agreement conferred exclusive permission at a rent
“licence” to occupy furnished room
Cowell v Rosehill Racecourse Co 1937 (lease/licence)
“50,000 people who pay to see a football match do not acquire 50,000 interests in the football ground”
Clear Channel v MCC 2006 (lease/licence)
- 13 hoardings “grants to the Contractor permission to erect and maintain the Ad. Display at the Sites for the Term”
- Payment of “rent” and termination on 14 days’ notice
- Ruled constituted a licence
Name some case law on tenancy at will.
Erimus Housing Limited v Barclays Wealth Trustees (Jersey) Ltd 2014
- The Landlord granted a 5-year Lease to the Tenant. Shortly after the expiry of the Lease the Tenant continued to remain in occupation of the premises and paid rent to the Landlord. Moreover, the Lease was contracted out of the Landlord and Tenant Act 1954.
- Negotiations were on-going between both parties, although no documents had been signed. However, the Tenant intended to leave the premises and notified the Landlord of his intentions. Nonetheless, the Landlord contended that the Tenant was remaining in the premises under a periodic tenancy and that this could not be terminated without providing at least six months’ notice to the Landlord.
- the Court of Appeal held that there was a tenancy at will. Furthermore, the fact that the negotiations were on-going indicated that the Tenant could leave the premises without providing any notice to the Landlord.
Name some case law on lease renewal.
O’May & Others v City of London Real Property Co Ltd 1982
- Either party wishing to change the terms of the lease will have to satisfy the 4 tests:
1. has the party demanding the change shown good reason
2. will the party resisting the change be adequately compensated?
3. will the adjustments materially impair the conduct of T’s business?
4. is the variation fair and reasonable between the parties?
Single Horse Properties v Surrey CC 2002
- L served s25 correctly
- T served counter-notice and applied to court for new tenancy
- Prior to lease expiry, T vacated and returned keys
- Ruled T correct as ceased occupation before end of tenancy and s25 of no effect