Landlord and Tenant Flashcards
1
Q
What are the four requirements for a lease?
A
- Exclusive occupation
- Payment of rent
- Specified term.
- Terms in writing, signed and registered as a deed (if term > 3 years).
2
Q
A license can be ______ at any time.
A
Revoked
3
Q
A license is a ______ right which can be terminated by either party.
A
Personal
4
Q
A license is a right to do what?
A
Enter a property
5
Q
No ____ in land is created by a license.
A
Interest
6
Q
A lease provides an occupier with an ______ in land.
A
Estate
7
Q
Can a license be assigned?
A
Usually can’t
8
Q
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)
A
Tenancy at will
9
Q
What is a temporary right and receives an annual payment such as for an electricity company to install and retain their apparatus?
A
A wayleave
10
Q
What is a wayleave?
A
A temporary right and receives an annual payment such as for an electricity company to install and retain their apparatus
11
Q
Can a way leave be transferred to another company?
A
No, it is personal to the company
12
Q
What is a permanent right enjoyed by one party over the land of another, receiving a capital payment?
A
An easement
13
Q
Is an easement capable of being registered at the Land Registry?
A
Yes
14
Q
What can be obtained as a result of continued and uninterrupted use being proven over a period of not less than 20 years?
A
A prescriptive right of way
15
Q
What is adverse possession?
A
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.
16
Q
What impact does the use of ‘Without Prejudice’ have during a period of negotiations?
A
Cannot later be relied upon in court by the opposing party.
17
Q
What happens in a rent review where correspondence has been labelled ‘Without Prejudice’?
A
It cannot be shown to the arbitrator/independent expert to show how negotiations were conducted.
18
Q
What should you state in order to prevent the terms being construed as a contract?
A
Subject to Contract
19
Q
What should you understand in terms of engagement for rent reviews/lease renewals?
A
Strategy and objectives
20
Q
What documents should be obtained for rent reviews/lease renewals?
A
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.
21
Q
How do you arrange an inspection?
A
Obtain contact details for tenant or agent.
22
Q
What should be agreed in terms of serving notices?
A
Confirm who’s responsible for serving the notice.
23
Q
What are fees based on for rent reviews/lease renewals?
A
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.
24
Q
What important aspects of the lease do you need to understand?
A
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.
25
What is it important to check for a rent review?
Whether time is of the essence.
26
What should be done after accepting the instruction and studying the lease?
Inspection and measurement
27
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.
28
A lawyer should always be instructed to serve which type of notice?
1954 Act lease renewal
29
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!
30
What needs to be done upon conclusion of negotiations in a rent review?
Document the rent review in a rent review memorandum.
31
What should be done upon conclusion of lease renewal negotiations?
Instruct solicitors to prepare the new lease in accordance with the heads of terms.
32
What is the usual type of rent review?
Upwards only to market rent
33
Is time normally of the essence?
No
United Scientific Holdings v Burnley Borough Council (1977)
34
What are the 4 usual assumptions for a rent review?
1. Property available to let on open market by willing tenant and willing landlord for term of years as stated.
2. Property fit and available for immediate occupation and use.
3. All covenants observed by landlord and tenant.
4. Property may be used for purpose set out in lease.
35
What are the 3 usual disregards in a rent review?
1. Any effect of goodwill on tenant’s occupation.
2. Ignore goodwill attached to property.
3. Tenant’s improvements if landlord consent had been granted.
36
What is the notional/hypothetical term of the lease?
The length of term to be value.
37
If the lease is silent on the notional/hypothetical term what should be valued?
The residue of the term.
38
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
39
What is the hierarchy of evidence for market rent?
1. Open market lettings
2. Rent reviews and lease renewals
3. Independent expert determinations
4. Arbitrator determinations
5. Court determinations under LTA 1954
6. Hearsay evidence
7. Sale and leasebacks
8. Surrender and renewals
9. Inter-company arrangements
40
What can be used to achieve an early resolution of a dispute and save on costs?
Calderbank letter
41
How must a Calderbank letter be headed?
‘Without prejudice save as to costs’
42
What does the losing party have to pay?
The other sides’s recoverable costs
43
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.
44
What is the usual Calderbank offer time limit?
21 days
45
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
46
Who is obliged to make an award for costs?
The arbitrator
47
What is the similar mechanism to Calderbank for lease renewals?
Under Part 36 of the Civil Procedure Rules
48
How is the method of determination established for a rent review?
Read the clause in the lease.
49
An independent expert has detailed _____ of the market as a valuer.
Knowledge
50
An independent expert is appointed by who?
President of RICS by Dispute Resolution Service
51
An independent expert is not bound by what?
Judicial rules
52
An independent expert can have his own opinion as to the _______ _____.
Market rent
53
An independent expert is bound by the terms of the _____.
Lease
54
The decision of an independent expert cannot be _____ against but they can be sued for _______.
Appealed, Negligence
55
How is an independent expert involved?
Via a hearing or written representation
56
An independent expert is good when there is a lack of _____ _________ and need to be up to date.
Market comparables
57
Does an independent expert have the power to order disclosure?
No
58
An independent expert orders ____ as set out in the lease.
Costs
59
In which case was an expert’s determination of a rent review not held to be binding due to his decision being based upon an incorrect interpretation of the rent review clause?
Level Properties Ltd v Balls Brothers Ltd (2007)
60
Who appoints an Arbitrator?
RICS President using Dispute Resolution Service
61
An arbitrator can decide how to _____ the case and order ____.
Hear, Costs
62
An arbitrator can only use ____ submitted by the parties, and/or from an _____ ______.
Evidence, Expert Witness
63
Arbitrators are immune from _______.
Negligence
64
Arbitrators can order _______.
Disclosure
65
What happens if an Arbitrator orders disclosure of documents by the parties to the arbitration?
It entitles a party to obtain details of all the other side’s rental evidence (when they would prefer to confine submissions to deals most favourable to their case).
66
Which Act is relevant to Arbitrators?
Arbitration Act 1996
67
The Arbitration Act 1996 also sets out the procedures to secure the attendance of ________ or the ________ of third party documents.
Attendance, disclosure
68
An Appeal to the High Court can be made within 28 days under what 3 grounds?
1. A challenge to the tribunal’s jurisdiction.
2. On a point of law.
3. Serious irregularity.
69
Who acts on the evidence provided and the arguments submitted?
Arbitrator
70
Who has a duty of investigation to discover the facts, details or comparables and other relevant information, and does not have to just consider the evidence provided (own knowledge and expertise can be used).
Independent expert
71
________ provides a limited right to appeal to the High Court.
Arbitration
72
Who can be liable for damages as a result of negligence by being sued?
Independent expert
73
Who has no powers of disclosure?
Independent expert
74
Who acts within a formal statutory framework?
Arbitrator
75
Who acts with an informal procedural timetable?
Independent expert
76
Who makes an award?
An arbitrator
77
Who makes a decision as an outcome?
Independent expert
78
Who would be preferable to act for a landlord in a falling market?
An arbitrator
79
Who would be preferable to act for a landlord in a rising market?
An independent expert
80
Who would be preferable to act for a tenant in a rising market?
An arbitrator
81
An advocate represents his client at a ______ or in ______.
Hearing, court
82
An advocate’s duty is to act in the best interests of _______.
His client
83
An advocate must act with _______.
Integrity
84
What is the relevant Practice Statement and Guidance Note relating to Expert Witnesses?
Surveyors Acting as Expert Witnesses 2014
85
Surveyors Acting as Expert Witnesses applies to evidence given to ______ and ________ ______.
Arbitrators and Independent Experts
86
Expert evidence provided by a chartered surveyor must be seen to be ________ and objective.
Impartial
87
Who is the surveyor's duty to as an Expert Witness?
The Court
88
What must be clearly stated within the Terms of Engagement for an Expert Witness instruction.
Fee basis
89
What does the Expert Witness have to sign at the commencement of his evidence?
Statement of Truth
90
Can the expert witness be sued for negligence?
Yes, following Jones v Kaney 2011
91
What are the contents of a rent review memorandum?
Name of L & T
Address of property
Date of lease and rent review
Confirmation of new rent agreed
Signed and dated by both parties
** Can also be recorded by an independent expert’s decision or arbitrator’s award or written acceptance of the Calderbank Offer.
92
When answering any question on rent review, what should you always state?
You would read the rent review clause in the lease.
93
What scheme is run by the RICS to have an independent surveyor settle disputed rent reviews for commercial properties with a rateable value of less than £10,000 (£15,000 in London)?
RICS Small Business Scheme for Rent Reviews
94
Which case relates to time usually not being of the essence in rent reviews?
United Scientific Holdings Ltd v Burnley Borough Council 1977
95
Which case relates to the the rent review being assumed to open market rent in the absence of clear wording?
British Gas Corporation v Universities Superannuation Scheme Ltd 1986
96
Which case relates to Calderbank letters?
Calderbank v Calderbank 1975
97
What does an advocates do?
Represents their client in court or at a hearing.
RICS Professional Statement 'Surveyors Acting as Advocates 2017'.
Duty to client and must act with integrity.
98
What are the four key points of the Practice Statement, Surveyors Acting as Expert Witnesses 2014 (amended 2023)?
1. Impartial and objective advice.
2. Duty to the court override obligations to client.
3. Evidence must be surveyor's independent work.
4. Surveyor must believe that the facts are complete and true.
99
Contents of a rent review memorandum?
- Name of LL and TT.
- Address.
- Date of lease & rent review.
- New agreed rent.
- Signed and dated by LL and TT.
- Can be recorded by Independent Expert's determination, an Arbitrator's award, or written acceptance of a Calderbank letter.
100
101
Which section of LTA 1954 states the basic elements of a business tenancy and what are they?
Section 23
1. It is a tenancy
2. Used for business
3. Occupied by the tenant (at least in part)
4. > 6 months occupancy
5. Not exempted/excluded (e.g. tenancy at will)
6. Competent landlord
102
What is S.24 of the act?
Tenancy does not expire by the effluxion of time, only when one party serves a notice.
No notice being served = holding over.
103
What is a S.25 notice in the act?
LL's notice to terminate the lease.
104
What must a S.25 notice contain and when must it be served?
6-12 months from termination date.
- Served by competent LL, given to TT.
- Termination date.
- Prescribed form and state TT rights.
- If LL will grant new lease (non-hostile) proposed terms included.
- If LL opposes new lease (hostile) the grounds for opposition stated.
- Date response is required.
- Strong recommendation to seek professional advice.
105
What is a S.26 notice in the act?
Tenant's notice requesting new tenancy beginning 6-12 months from notice.
Must included new rent.
Landlord must serve counter-notice within 2 months if they oppose.
106
What is a S.27 notice in the act?
Tenant's notice to leave with 3 months' notice after the expiry date.
107
What are the S.30 grounds for opposing a new tenancy?
Discretionary (court decides if reasonable):
1. Breach of repairing covenant
2. Persistent delay in paying rent
3. Other substantial breach
4. Providing suitable alternative accommodation
5. Uneconomic subdivision (compensation due)
Mandatory
6. Demolition or reconstruction (compensation due)
7. Owner occupation (compensation due)
108
What must the LL prove for redevelopment grounds for opposing a new lease?
Firm intention.
Funding.
Planning.
Substantial work.
Necessity to gain vacant possession.
109
What must the LL prove for owner occupation grounds for opposing a new lease?
5 years ownership.
Intention to occupy.
110
What is the compensation due under S.37 of the act?
If landlord gains possession through S.25 notice, tenant due compensation for leases after 1 April 1990 if they haven't breached the tenancy.
<14 years = rateable value x1
>14 years = rateable value x2
Can also be for tenant's improvements under LTA 1927 part 1
111
Terms of new lease under the act
Max 15 years.
Must be market rent.
Ignore previous occupation, goodwill and landlord's approved improvements carried out by tenant in last 21 years.
112
What are the two 3rd party determination options for lease renewals?
1. County court - Civil Procedure Rules
- pre-action protocols.
- part 36 offer is similar to Calderbank; open for 21 days, after which it can be withdrawn.
2. Professional Arbitration on Court Terms (PACT)
- launched by RICS 1997.
- for unopposed lease renewals.
- decision is binding.
- it is faster, cheaper, more flexibility and control, decision by surveyor not judge.
113
114
What are the proposed changes to the LTA 1954?
March 2023 Law Commission announced plans to review Part II, covering security of tenure, interim rents, process of serving notices.
115
Which section relates to contracting out?
S.38A:
- LL must serve notice on prospective tenant (health warning).
- Proposed tenant must make declaration confirming receipt and acceptance. Simple declaration (>14 days to lease start) or statutory declaration (<14 days) - before an independent solicitor.
- Must be completed before lease is signed.
116
How can a lease be terminated?
1. Forfeiture
2. Surrender and negotiation
3. Merger
4. Disclaimer (insolvency)
5. Break clause
6. Lease expiry / notices under LTA 1954
