Landlord and Tenant Flashcards
Section 23
The criteria to be eligible for security of tenure:
- must be used for business purposes
- must be a tenancy
- must not be a serviced tenancy or TAW
- T must occupy at lease part of the property
- tenancy must be at least 6 months
- must be a competent LL with at least 14 months interest
Section 24
Tenant has right to stay in occupation under same terms when contract ends (holding over) until one party serves notice
Section 25
CHECK VALIDITY
LL serving notice on T
- must be in prescribed form and inform tenant of rights (strongly suggest legal advice)
- 6-12 months notice
- date of notice termination and required response date
- ll and tenant address and property address
- parties can extend time limit by agreement (if you are undertaking agreements and pass date for new lease as per s.25/26, tenant loses security of tenure unless new lease in place, one party has applied to court or parties have agreed in writing an extension of statutory period (stay)
- maximum term of 15 years can be granted by the Court
Friendly - proposed terms and rent
Hostile - grounds under section 30 for opposition
Section 26
CHECK VALIDITY T notice to renew - prescribed form - proposed terms - 6-12 months notice (LL has 2 months to serve counter notice)
Section 27
CHECK VALIDITY T notice of termination - prescribed form - 3 months notice at anytime - if tenant vacates before contracted end, no notice needed (PEARL ASSURANCE VS ESSELTE 1997)
Section 30
Grounds for opposition: a. Repair breach b. Rent breach c. Other substantial breach d. Alternate accommodation e. Uneconomic f. Development g. Owner occupy a-e up to court, f & g mandatory For development must prove intention, funnding, planning, substantial work & necessity for vacant possession Re-occupation LL must have owned property for 5 years and prove intention to occupy CASE LAWS: FRANCES V CAVENDISH 2018 - Supreme court, acid test BETTYS CAFES V PHILLIPS 1958 / VIVIENNE WESTWOOD V CONDUIT STREET DEVELOPMENTS 2017 - a,b,c count on day of court hearing KELES V PATEL 2009 - must actually owner occupy (newsagents, retirement) HUMBER OIL V BAP 2012 - change to license due to expensiveness to move FROZEN VALUE V HERON FOODS 2012 - competant LL of 5 continuous years
Section 31
Courts right to dismiss renewal
Section 32
The property
Section 33
Duration
Post 1st June 2004 Regulatory Reform for Business Tenancies Order 2003 states maximum 15 year term
Section 34
Rent Assumptions - Terms - willing LL and T - VP - L&T Covenants 1995 Disregards - current occupation - goodwill - improvements unless LL obligation or over 21 years ago - any licenses
Section 37
Compensation
If after 1st April 1990 and LL opposes, compensation if no lease breach, and under s.30 e/f/g
1 x RV if 14 years or under
2 x RV over 14 years
RV is the RV in force at the date of hostile 25 or counter s26
Compensation may be liable for improvements under LTA 1927
Section 35
Other terms
O’May V City of London 1982
- intro of s/c for external/structural would have massive burden, more than reduction in rent
4 principles for varying terms:
1. LL must have valid reason from estate mgmt grounds
2. changes must be capable of being compensated by rent change
3. change must not adversely affect T’s security of tenure
4. must be reasonable
Concept of modernisation accepted to reflect current market practice, e.g. AGAs, VAT etc
Edwards & Walkden V City of London 2012
- Smithfields tenants originally paid S/C and rent but became inclusive rent temporarily during building works
- T’s wanted inclusive again, court said they should pay s/c
Section 24a
Interim rent - LL or T can apply to court to determine rent from end of old tenancy until start of new
Post 1st June 2004 LTA 1954 reforms
- Once one party has applied, the other cannot (important in failing market)
- Earliest date to serve is date of S25/S26
- Latest date is 6m after termination of tenancy
- Rent assumes annual tenancy and market rent
- rent to be paid from end of fixed term until new rent starts
- interim rent can be subject to adjustment if market conditions change significantly over interim period
- can be decided using PACT proceedings
- if no notice served, there is no interim rent
Third Party Determinations for Lease Renewals
COUNTY COURT - Following Civil Procedures 1998
- Pre-action protocols
- Laws for anticipated / on-going court proceedings
- Part 36 offer is similar to procedure as a Calderbank offer to induce the other party to settle
- Offer only open for 21 days, after this it can be still accepted but it is possible for offer to be withdrawn by party who made it
PROFESSIONAL ARBITRATION ON COURT TERMS
- Launched by RICS and Law Society 1997
- RICS encourages as an alternative dispute resolution service to court
- In-court PACT is designed to be used for an unopposed new tenancy where one party has already made an application to the court to fix terms of new tenancy
- Out-of-court PACT to be used when no court application has been made by either party, and parties agree to a postponement of such application pending an out-of-court PACT resolution
- Normal services of notices must take place and necessary applications to Court made
- Court needs to give consent order binding on both parties
- Arbitrator nominated by President of RICS or Law Society
Advantages: faster, full court hearing avoided, greater flexibility and control, less expensive, decision by surveyor acting as arbitrator rather than judge
Section 40
Notice requesting information from either landlord and tenant, so LL/T can check exactly who the competent LL/T is with statutory protection
- either party can serve S.40 notice during the last 2 years of tenancy requesting details as to the name and registered address of the other party who has to provide the information within one month (failure to do so can be taken as a breach of statutory duty
- not limited to one request, LL could serve another notice just prior to serving S25 notice to check the tenant is still the same occupier
Section 44
Competent LL / the person or body who a notice should be served or should serve the notice
Must be a freeholder or superior tenant with unexpired term of over 14 months
Section 38A
Contracting outside the Act
Reasons: LL wants to re-occupy in due course, LL wants to develop at lease end, rent lower, flexibility, requirement of headlease to grant subletting outside of Act
- T has no statutory right to stay at end of lease or compensation right
- TAW required if new lease is being renegotiated at lease end to ensure tenant cant claim statutory protection
- no rent should be collected until new lease completed as this could lead to new protected tenancy
- ‘health warning’ LL serve notice on prospective tenant to warn new tenancy will not be protected, proposed tenant must then make delcaration in response confirming he recieved notice and accepts (simple dec given when parties have over 14 prior to committing to lease, stat dec when parties have less than 14 days and must be made before an independant solicitor)
- procedure must be completed before lease can be signed
Various ways of lease termination
- forfeiture
- surrender
- merger
- disclaimer (due to insolvency)
- break clause
- lease expiry
- service of notice under LTA 1954
- negotation
Key Case Law
CHILTERN RAILWAYS V PATEL 2008
- Tenant said declaration should have been simple not stat, court said bordering on absurd as stat dec more official
INCLUSIVE TECHNOLOGY V WILLIAMSON 2009
- this case is a warning to all LLs that silent when intentions change can amount to misrepresentation
- LL served S25 hostile notice under development grounds
- LL didnt intend to carry out redevelopment but as a result of changing market conditions, decided not to
- LL didnt tell T of change and marketed property to be let
- before marketing property the tenant found alternative accommodation at higher rent not knowing existing property was being marketed
- the tenant sued the LL for misrepresentation claiming damages amounting to the difference between rent he would pay for new premises and rent he would have had to pay for his existing premises
- the court held that the LL should have informed the tenant when he decided not to redevelop
SOMERFIELD STORES V SPRING SUTTON COLDFIELD 2009
- T could process with application for new tenancy even though LL went into administration
- 2010 T attempted to overcome the LL opposition to a new tenancy, Court held that the LL may not be able to prove intention until the date of the full trail, tenant cannot reduce the time available by seeking summary judgement
- a tenants right to continue lease renewal proceedings against a LL in administration outweighs the benefit to the LLs bank of delaying proceedings to work up a redevelopment scheme
BARCLAYS WEALTH TRUSTEE V ERIMUS HOUSING 2013
- t staying in occupation at end of contracted outside the At tenancy
- the t wished to vacate but was laible for 13 months rent as it was held that a new periodic tenancy had been created
