Landlord and Tenant Flashcards
What are the four requirements for a lease?
- Exclusive occupation
- Payment of rent
- Specified term.
- Terms in writing, signed and registered as a deed (if term > 3 years).
A license can be ______ at any time.
Revoked
A license is a ______ right which can be terminated by either party.
Personal
A license is a right to do what?
Enter a property
No ____ in land is created by a license.
Interest
A lease provides an occupier with an ______ in land.
Estate
Can a license be assigned?
Usually can’t
What is a form of license created by written agreement for an unspecified time in which the landlord may evict the tenant at any time? Usually to allow early entry for fit out or whilst agreeing a new lease on expiry (where contracted out of 1954 Act)
Tenancy at will
What is a temporary right and receives an annual payment such as for an electricity company to install and retain their apparatus?
A wayleave
What is a wayleave?
A temporary right and receives an annual payment such as for an electricity company to install and retain their apparatus
Can a way leave be transferred to another company?
No, it is personal to the company
What is a permanent right enjoyed by one party over the land of another, receiving a capital payment?
An easement
Is an easement capable of being registered at the Land Registry?
Yes
What can be obtained as a result of continued and uninterrupted use being proven over a period of not less than 20 years?
A prescriptive right of way
What is adverse possession?
The process of gaining possession of land without the owners permission by proving uninterrupted use for a certain period.
12 years prior to Land Registration Act 2003, now 10 years. If not registered at land registry still 12 years.
What impact does the use of ‘Without Prejudice’ have during a period of negotiations?
Cannot later be relied upon in court by the opposing party.
What happens in a rent review where correspondence has been labelled ‘Without Prejudice’?
It cannot be shown to the arbitrator/independent expert to show how negotiations were conducted.
What should you state in order to prevent the terms being construed as a contract?
Subject to Contract
What should you understand in terms of engagement for rent reviews/lease renewals?
Strategy and objectives
What documents should be obtained for rent reviews/lease renewals?
Copy lease.
Plans attached to lease or Deeds of Variation.
Copies of any licenses e.g. for alterations, improvements, sub-letting, or assignment.
Copies of rent review memorandums.
How do you arrange an inspection?
Obtain contact details for tenant or agent.
What should be agreed in terms of serving notices?
Confirm who’s responsible for serving the notice.
What are fees based on for rent reviews/lease renewals?
A percentage of new rent agreed.
A percentage of the saving made from the quoting rent.
A fixed fee.
An hourly rate (more common for third party determinations).
Incentive fee.
What important aspects of the lease do you need to understand?
Rent review clause.
Check not contracted out of 1954 Act (security of tenure provisions) in case of a lease renewal. IF SILENT - lease is inside Act.
What is it important to check for a rent review?
Whether time is of the essence.
What should be done after accepting the instruction and studying the lease?
Inspection and measurement
What do you need to do after inspecting for a rent review?
Undertake a market rent valuation, having regard to the terms of the lease.
Prepare a report to the client setting out recommendations.
A lawyer should always be instructed to serve which type of notice?
1954 Act lease renewal
What do you need to do upon receipt of client instructions regarding a strategy?
Open negotiations once the correct notices have been served.
Check any notice received is valid!
What needs to be done upon conclusion of negotiations in a rent review?
Document the rent review in a rent review memorandum.
What should be done upon conclusion of lease renewal negotiations?
Instruct solicitors to prepare the new lease in accordance with the heads of terms.
What is the usual type of rent review?
Upwards only to market rent
Is time normally of the essence?
No
United Scientific Holdings v Burnley Borough Council (1977)
What are the 4 usual assumptions for a rent review?
- Property available to let on open market by willing tenant and willing landlord for term of years as stated.
- Property fit and available for immediate occupation and use.
- All covenants observed by landlord and tenant.
- Property may be used for purpose set out in lease.
What are the 3 usual disregards in a rent review?
- Any effect of goodwill on tenant’s occupation.
- Ignore goodwill attached to property.
- Tenant’s improvements if landlord consent had been granted.
What is the notional/hypothetical term of the lease?
The length of term to be value.
If the lease is silent on the notional/hypothetical term what should be valued?
The residue of the term.
What is it called if there is a provision within the lease requiring the landlord to specify the rent in a trigger notice, with the tenant being deemed to accept the new rent if they do not serve the appropriate counter-notice within a specified time?
Deeming provision
What is the hierarchy of evidence for market rent?
- Open market lettings
- Rent reviews and lease renewals
- Independent expert determinations
- Arbitrator determinations
- Court determinations under LTA 1954
- Hearsay evidence
- Sale and leasebacks
- Surrender and renewals
- Inter-company arrangements
What can be used to achieve an early resolution of a dispute and save on costs?
Calderbank letter
How must a Calderbank letter be headed?
‘Without prejudice save as to costs’
What does the losing party have to pay?
The other sides’s recoverable costs
What must the letter set out?
All the terms to settle the dispute and a time limit in which the other party must accept the offer.
What is the usual Calderbank offer time limit?
21 days
A Calderbank letter must be a genuine offer to settle and not simply used as a mechanism to _____ costs or pressure the other party.
Influence
Who is obliged to make an award for costs?
The arbitrator