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APC commercial pathway > landlord and tenant (correct) > Flashcards

landlord and tenant (correct) Flashcards

1
Q

What is the difference between a lease and a license?

A

a license passes on no interest in the land it just allows an activity that would otherwise be unlawful. A lease allows for sole occupation a license does not.

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2
Q

What are the four requirements of a lease?

A
  1. exclusive occupation
  2. rent paid
  3. duration of specific term
  4. if the terms if more than 20 years it must be registered in land register
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3
Q

What is a licence

A
  1. a person agreement between licensor and licensee
  2. a right to access a property- perhaps to pass through for access
  3. licensee acquires no interest in the property
  4. its merely a personal right which can be terminated by either party
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4
Q

What is a wayleave

A
  1. a wayleave is a temporary right received for making a payment. It usually relates to specialist activities such as utilities like laying pipes or cables
  2. its personal to a company and cannot be transferred to another party
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5
Q

What is an servitude?

A
  1. a permanent right that has been acquired
  2. can be passed to other parties
  3. can be restricted to certain activities
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6
Q

What is a prescriptive right

A

1.a right gained from exercising a right of access for 20 plus years

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7
Q

What does “without prejudice” means

A

If info is labelled without prejudice its privileged info and cant be used as evidence if any sort of lease negotiations have to go to court or any sort of ADR

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8
Q

What sort of info might you acquire from a client before commencing a lease renewal or review

A
  1. signed ToE
  2. clients objective and strategy
  3. copy of the existing lease and any plans
  4. copy of any licenses, assignments, variations
  5. copy of past rent reviews
  6. contact details of tenant to arrange inspection or details of landlord or agent
  7. a copy of the property management file- to see if there is any background info that could assist
  8. ask client if they have any comparable evidence
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9
Q

What should be in a terms of engagement for a rent review

A
  1. scope of work
  2. .copy of CHP
  3. info on fee basis and how its calculated this could be:
    - percentage of new rent agreed
    - a percentage of saving made from rent quoted
    - a fixed fee
    - a hourly rate
    - incentive fee
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10
Q

what steps would you take in a rent review or lease renewal

A

1.check SUK
2CoI
3ToA
4.clients objective
5.obtain lease info-any sub leases, extension, varations etc
6.read through it all carefully and understand rent review clause and check its contracted outside of the Landlord and Tennant act 1954
7.check if time is of the essence
8.undertake site inspection and measurement
9.find comparable evidence and undertake market rental valuation
10. prepare report setting out recommendation to client
11.agree strategy with client
12.open negotiation, check any notices served are valid
13.conclude negotiations and document in rent review memo or for lease renewal instruct solicitors to prepare new lease in accordance with HoT agreed

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11
Q

What is the hierarchy of evidence

A

This is the relevant weight attached to comparable evidence:

  1. open market lettings
  2. rent reviews and lease renewals
  3. independant expert determination
  4. arbtration determinations
  5. court determinations
  6. hearsay evidence
  7. sale and leaseback
  8. surrender and renewal
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12
Q

Can you use post dated evidence ?

A

Yes you can in some cases. Courts have heard it to be admissible in some cases where there is a lack of evidence at the time. Baring needs to be given to the duration between the evidence and the review date. The longer the time gap the less weight the evidence should carry.

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13
Q

What is the relevant legislation for Landlord and Tennant

A

this is no key legislation for scotland its mainly based on case law

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14
Q

What would you do if third party determination was needed for a rent review

A
  1. Read the lease and see what the rent review clause allows for. The options for third party determination should be agreed before and set out in the lease.
  2. check the RICS guidance note. There is guidance on arbitration, independent experts, conflict of interest.
  3. If a lease doesn’t stipulate a method I would consider what would be the most beneficial route for my client
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15
Q

What would you do if third party determination was needed for a rent review

A
  1. Read the lease and see what the rent review clause allows for. The options for third party determination should be agreed before and set out in the lease.
  2. check the RICS guidance note. There is guidance on arbitration, independent experts, conflict of interest.
  3. If a lease doesn’t stipulate a method I would consider what would be the most beneficial route for my client
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16
Q

explain what an independent expert is

A
  1. someone with a detailed knowledge of the market as a valuer
  2. Can be appointed by RICS but not bound by judicial rules
  3. bound by terms of lease
  4. can have their own opinion on market rent
  5. cannot appeal but can sue for negligence
  6. good when lack of market evidence
  7. no power to order disclosure
17
Q

explain arbitration

A

1.arbirators are appointed by the RICS
2.format includes agreed statement of facts and timetable for submission
3.statement of agreed facts are facts agreed by both parties e.g lease terms, floor space, comp evidence
4.arbitrator will provide reasoned award unless agreed otherwise with parties
5.they can only review info submitted by parties
6.not liable for negligence claim
7.can order disclosure
(arbitrator follows the arbitration act)
5.

18
Q

what are the key differenced between arbitration and IE

A
  1. eviedence
  2. negligance claims
  3. right to ask for disclosure
19
Q

what four things must an expert witness show

A
  1. impartiality
  2. duty to court not client
  3. evidence must be independent
  4. evidence must be true and accurate
20
Q

What is the contents of a rent review memorandum

A
  1. name of landlord and tenant
  2. subject of lease
  3. date of lease and rent review and basis or rent review
  4. old and new rent
  5. signed by both parties
21
Q

what is the minimum amount of notice you can give on a lease continuing on tacit

A

40 days

22
Q

what are the key clauses of a lease

A
  1. lease details
  2. rent
  3. tennant obligation-repairing, alienation, insurance
  4. landlords obligation- warrandice, insurance
  5. irrantancy
23
Q

what are the rules for termination in Scotland

A

To terminate a lease in Scotland a landlord or tenant must serve an effective notice to quit on the other party. Even when a lease specifies an end date the parties must state their intention to quit. A lease will continue on tacit relocation if no notice is served.

24
Q

why might a notice to quit not to be valid

A
  • not providing the correct notice period e.g served to late
  • not complying with clauses in the lease- repairing clause perhaps
25
Q

What does the long leases Scotland act 2012 cover

A
  1. converts ultra long leases (175 years plus) into ownership
  2. permits some leasehold conditions to become real burdens
  3. permits sporting rights relating to fishing and shooting to be preserved
  4. permits the tenant to opt out of ownership if they wish
26
Q

does the landlord and tenant act apply in scotland

A

No there is very little legislative protection for tenant in Scotland so any protection will need to be set out in the lease

27
Q

when did the long leases scotland act come into force

A

2015

28
Q

can you explain a ground lease?

A

A ground lease is an agreement that permits a tenant to develop a piece of property during the period of the lease

29
Q

at what point must a lease be recorded in the land register

A

anything over 20 plus years must be registered in order for the tenant to obtain a real right

30
Q

can you explain the case law relating to rent reviews and how this comes into play in my roles

A

AWG Group vs HCP properties goes to show that time is not of the essense in rent reviews unless the rent review clause states it is.

In this case the lease was subject to RR’s every 5 years the next being due in 2014. The last rent review has been done in 2009 but the previous owners who has since sold the building in 2013. The sale particulars noted that the rent review was due in 2019 and AWG never invoked it.

The court ruled that it didn’t matter that the sale particulars had it wrong that did not waive the landlords right to a rent review as it was not stated that time was of the essence.

31
Q

what is some of the relevant case law

A
  1. AWG Group vs HCP properties
  2. Brucefield Estate Trustee Company Limited (in liquidation) v Computacentre (UK) Limited - tacit relocation
  3. Gateway Asset Ltd v CV Panels Ltd - notice to quit
32
Q

what would you do if a lease does not have an end date

A

if a leases does not have an end date it is presumed under common law that the end date is the day proceeding one year from the date of entry. A minimum of 40 days notice must be given in this case.

APC commercial pathway (25 decks)

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