Landlord and Tenant Flashcards
What is the key piece of case law relating to the difference between a lease and licence?
Street V Mountford (1985)
What is a Licence?
Right to enter property
Personal arrangement between licensor and licensee
Licensee has no interest in property and merely have personal right to use property which can be terminated at any time.
What are the 4 requirements for a lease?
Exclusive Possession
Payment of Rent
Duration of specified term
If more than 3 years, terms must be in writing, signed and registered as a deed.
What are 3 differences between a Lease and Licence?
- Lease provides occupier with estate in relevant, where licencee only as personal right to use land.
- Lease can be assigned.
- Lease cannot be terminated until it expires (unless break clause).
What does ‘without prejudice’ mean?
During negotiations, the opposing party cannot use any documents titled with this where representations made in litigation.
Fees for rent reviews and lease renewals, what can they be based on?
-% of new rent agreed
-% of the saving made from the quoting rent
-a fixed fee
-An hourly rate
-Incentive fee
What is a tenancy at will?
This is a form of licence created by written agreement for unspecified time in which LL may evict the tenant at any time. Not legal interest and no renewal right.
What is a wayleave?
Temporary right and receives an annual payment - such as it provides a right for electricity company to install and retain their apparatus.
Personal to company and cant be automatically transferred to new owner.
Not compulsorily registrable.
What are some typical rent review assumptions?
-Property available in OM by willing T and LL for term of years stated (hypothetical term).
-Property is fit and available for immediate occupation and use.
-All covenants observed by LL and T.
-Property may be used for purpose set out in lease.
When would a tenancy at will be used?
Where Tenants enter property early before contractual period of their lease.
What are some typical rent review disregards?
-Any effect on goodwill on T’s occupation.
-Ignore goodwill attached to the property.
-T improvements if LL consent has been granted for works.
What is the case of Basingstoke and Deane Borough Council V Host Group (1987)?
States that where the lease is silent on the matter of the hypothetical term, the term to be valued is the residue of the term.
What is the case of United Scientific Holdings Ltd V Burnley BC (1978)?
States that time is not of the essence regarding the service of a rent review notice unless explicitly stated within lease.
What is a deeming provision within a lease?
Normally within older leases. Clause will state that if T does not submit an appropriate counter-notice in the specified time, the tenant will have deemed to accept the new rent.
What is the Hierarchy of Evidence (according to the Hand book of rent review)?
OML
RR/LRs
Ind Exp Determinations
Arbitrator Awards
Court Determinations under LTA 54
Hearsay evidence
Sale and leasebacks
Surrender and renewals
Inter-company arrangements
What does a Calderbank offer do?
Helps achieve resolution without having to go to third party/courts.
What should be included in a Calderbank Offer and what are the deadlines?
Letter must state all the terms to settle in despite and a time limit of when other party must accept the offer.
The time limit for acceptance is usually 21 days but this may vary by case.
How much currently does it cost to make an application to the RICS President for Third Party determination?
£425 inclusive of VAT
Who is an Independent Expert?
- Someone who has detailed knowledge of market.
-Complies with RICS GN Ind Expert Determination 2016
-Appointed by RICS President by DRS but not bound by judicial rules.
-Can make own investigations and have own opinion as to Market Rent.
-No judicial functions.
-No appeal against decision but can be sued for negligence.
-Orders cost set out in lease but only has power over their own costs.
Bound by terms of lease.
-No power to order disclosure.
-Can involve hearing of dealt with by written representations.
Who is an Arbitrator?
-They comply with Arbitration Act 1996.
-Can be appointed by RICS President using DRS and be a member of Chartered Institute of Arbitrators.
-Format decided by arbitrators including timetable for submission.
-Parties to submit Statement of Agreed Facts.
-Only use evidence submitted by parties.
-Will provide reasoned advice unless agreed otherwise with parties.
-Can order disclosure of documents via S34 of Arbitration Act, whereby each party allowed to see other sides rental evidence.
When can you appeal to the High court regarding an Arbitrator’s Award?
-Within 28 days of the award.
-If its a challenge to the tribunal’s jurisdiction
-It on a point of law.
-If there is a serious irregularity.
What details should be listed in a rent review memorandum?
-Name of LL and 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 Ind Exp determination or arbitrator’s award or written acceptance of Calderbank offer or an open letter.
What RICS document relates to Expert Witnesses?
RICS Practice Statement and GN ‘ Surveyors acting as Expert Witnesses, (4th Edn, amended in 2020)
What is the role of an Expert Witness?
- Provide impartial and objective expert evidence
- Duty of surveyor is to court and this overrides obligation to client.
- Evidence must be the independent work of surveyor.
- Surveyor must believe that the facts upon which they rely are complete and true and their opinions are correct.
What governs disclosure in court?
The Civil Procedure Rules
What is defined as a ‘business tenancy’ under S23, LTA 54?
- Its a tenancy
- Premises must be used for business
- Occupation of at lease part of premises by Tenant.
- Occupancy of more than 6 months.
- Must not be exempt or excluded tenancy.
- Must be competent LL (Freeholder/Superior T with more than 14 months to run)
What does S24 of LTA54 Act do?
States that business tenancy within Act is allowed to hold over after expiry of tenancy until relevant notice served and in compliance with lease provisions.
What is a Section 25 Notice and what are the timescales?
A notice to terminate the existing lease and either propose terms for new lease or states ground for opposition to new lease. Landlord serves notice and must be served 6/12 months before date of termination.
What should a Section 25 Notice contain?
Name and address of LL and T.
Address of property
Notice of date to end tenancy
Conf if new tenancy opposed or granted
Conf of date of response required
If friendly notice, terms proposed
If hostile notice, reason for opposition
What is a S26 Request?
Tenant serves this notice, 6/12 months terminating the lease and proposing a new tenancy.
Is the LL required to respond to a S26 request?
Yes, if they oppose the granting of a new tenancy, they have 2 months to serve a counter-notice.
What is a Section 27 Notice?
Effectively a notice to quit. The Tenant serves this notice 3 months before they plan to leave the property if they are holding over. Not needed if T plans to leave on contractual expiry date.
What does S28 of the LTA 54 do?
Where both parties agree to a new lease renewal, lease shall continue.
What is S29 of the LTA 54?
Order by court for grant/termination of current tenancy. Can be applied for once relevant notice served.
What does S29A and B relate to?
29A - Time limits for court application e.g. for S25 Act the statutory period ends on the date specified in the Notice.
29B - Agreement for extending court application.
What are the grounds for refusal set out in S30 of the LTA54?
a) Breach of repairing covenant
b) Persistent delay in paying rent
c) Other substantial breach
d) Provide suitable alt accomm
e) Uneconomic subdivision
f) Demolition/reconstruction
g) Owner occupation
How long must a Landlord own a property before they are able to use the owner occupation S30 reason for opposing a renewal?
5 years. Must also prove intention to occupy and run their own business.
What S30 grounds are discretionary and which are mandatory?
Grounds a-e are discretionary and courts decide whether reasonable.
Grounds f-g are mandatory.