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APC 2024 > Landlord and Tenant Lvl3 > Flashcards

Landlord and Tenant Lvl3 Flashcards

1
Q

What is a Lease?

A

A lease is a legally binding contract which grants the lessee with an estate in the land or property. The lease sets out the terms and conditions and right and obligations of the tenancy.

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2
Q

What is a Licence?

A

A licence is an agreement which grants permission for the licensor to use the land or property.

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3
Q

What is the difference between a Lease and a Licence?

A
  1. A lease grant the occupier with an estate in the land / property. A licence does not
  2. A lease can be assigned. A licence can not
  3. A lease is difficult to terminate. I licence can be revoked easily
  4. A lease can give right to renewal. I licence does not
  5. Street V. Mountford 1985
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4
Q

What are some landlord covenants?

A
  1. Repair and maintain
  2. Insure premises
  3. Rebuild in the case where the building has been damaged / destroyed
  4. Give peaceful enjoyment
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5
Q

What are some tenant covenants?

A
  1. Repair and maintain
  2. Pay all liabilities
  3. To not create a nuisance
  4. Vacant possession on the cessation of the lease
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6
Q

What are some clauses?

A
  1. User clause
  2. Exclusivity clause
  3. Keep open clause
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7
Q

What does “contracted out” mean?

A

Renounced rights under L&T 1980/94

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8
Q

What is tenancy at will?

A

Occupied at the will of the landlord. Short term. Still allows exclusive possession

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9
Q

What is assignment of the lease?

A

Assignment of the lease is a legal process where the entirety of the lease is transferred from one party to another. The assignee assumes all responsibility for the performance of the lease post assignment whilst the assignor is absolved of performance.

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10
Q

What is subletting?

A

Subletting is where a tenant enters into their own sub-agreement of part or whole of the demise. Tenant is still liable for the performance of the lease

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11
Q

Can I landlord refuse assignment or subletting

A

No a landlord cannot unreasonably withhold a request for either

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12
Q

When can a landlord refuse an assignment/ sublet?

A
  1. Doesn’t align with landlord’s commercial goals
  2. Assignee is not of appropriate covenant
  3. Disruption to existing tenancy mix
  4. Inappropriate user
  5. Effect insurance
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13
Q

What is the process for requesting an assignment /Sublet?

A

Initial Steps

  1. Review lease
  2. Seek landlord permission
  3. Prepare information

Formal Application

  1. Assignment / Sublet Agreement - Outlines the transfer
  2. Application to landlord - Formal application to L/L containing assignment agreement/ assignee info and other relevant documentation
  3. Negotiation - Landlord will negotiate specific clause
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14
Q

What is the process of terminating a lease as a tenant?

A
  1. Surrender - Tenant hands back leasehold interest in the property prematurely
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15
Q

What are the four requirements for a lease?

A
  1. Exclusive Occupation
  2. Payment of rent
  3. Duration for a specified term
  4. Terms in writing, signed and registered as a deed
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16
Q

Can a wayleave be transferred to another company?

A

No, it is personal to the company

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16
Q

What is a wayleave?

A
  1. Temporary right to access
  2. Receives annual payment
  3. Electricity company to install / service equipment
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16
Q

What does a wayleave look like on an ordinance survey map?

A

Wayleaves are often shown as lines on the map. The line thickness and style might vary, but they are usually distinct from property boundaries.
Labels are crucial for identification. An wayleave might be labeled with its purpose (e.g., “Right of Way”, “Drainage Easement”), beneficiary (e.g., “ESB Wayleave”), or reference number.

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17
Q

What is an easement?

A
  1. Permanent right of way
  2. Over the land of another party
  3. Capital compensation
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18
Q

Can an easement be registered at the land registry?

A

Yes

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19
Q

What can be claimed as a result of continued and uninterrupted use over 20 years?

A

Prescriptive right of way

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20
Q

What impact does “Without Prejudice” have during a period of negotiations?

A
  1. Discussion from that point onwards cannot be used as evidence
  2. Allows parties to negotiate free from compulsion
  3. Cannot be shown to arbitrator / independent expert if express in review
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21
Q

What is subject to contract?

A
  1. Offer is subject to other terms and conditions being met
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22
Q

What needs to be agreed at the start of an instruction?

A

Terms of Engagement

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23
Q

What should you understand in terms of your clients?

A
  1. Commercial objective
  2. Strategy
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24
Q

What documents should be obtained for a rent review?

A
  1. Copy lease
  2. Plans attached to lease or Deeds of Variation
  3. Copies of any licences e.g. alterations, improvements, sub-letting or assignment
  4. Copies of rent review memorandums
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25
Q

How would you arrange an inspection?

A

Obtain contact details of tenant or agent

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26
Q

What should be agreed in terms of serving notices?

A

Confirm who is responsible for serving

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27
Q

What should you check before issuing terms of engagement?

A
  1. Competent
  2. No personal interest of conflict
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28
Q

What is the rent review process?

A
  1. TOE
  2. Clients objectives
  3. Review lease, contract out, RR clause
  4. Time of the essence?
  5. Check notice requirements and time limits for implementing RR
  6. Inspect and measure
  7. Compile comps and analyise comps
  8. Value in accordance with the lease
  9. Report to client and agree strategy
  10. Negotiate
  11. Settle/ Refer to 3rd party - Review ADR clause
  12. Document and instruct solicitors
  13. Invoice
  14. Note next lease event
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29
Q

What is contained in a rent review notice?

A
  1. Refer to lease
  2. Party details
  3. Property address
  4. Note specific clause allowing review and state review date
  5. Proposed new rent (confirm)
  6. Timeline for response if one is applicable.
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30
Q

What are some standard RR assumptions?

A
  1. Hypothetical term
  2. Open market
  3. Willing parties
  4. Fit for immediate occupation
  5. User stated in lease
  6. Vacant possession
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31
Q

What are some standard disregards?

A
  1. Goodwill
  2. Improvement
  3. Occupancy
  4. Inducements
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32
Q

How do you activate 3rd party Arbitration / Independent Expert

A
  1. Consult lease
  2. “Demand for arbitration”
  3. “Notice of dispute”
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33
Q

What has the Arbitration Act 2010 brought in?

A
  1. Modernised and improved arbitration in Ireland
  2. Adoption of the UNCITRAL Model Law (International Best Practice)
  3. Recognition and enforcement of international arbitration awards
  4. Streamlined procedures
  5. Clarity on arbitrator immunity
  6. Improved confidentiality
  7. Repeal of previous legislation (54/98)
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34
Q

What is difference between Arbitrator and Independent Expert?

A
  1. Role - Arbitrator resolves dispute with a legally binding decision / Independent Expert provides and expert opinion on an issue
  2. Process - Arbitrator bound by arbitration act and common law. They base there decision on the cases presented by both parties / Conducts their own independent investigation, may involve consultation with both parties
  3. Authority - Arbitrator issues a final and binding award / Independent Expert issues their determination, not legally binding
  4. Appointment - Both are normally appointed by the involved parties of President of the SCSI
  5. Expertise - Arbitrator may not posses expert skills in the particular field / Independent Expert possesses expert skills in the particular field
  6. Other - Arbitrator can request discovery and award costs / Independent Expert cannot.
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35
Q

What are the grounds for challenging an award?

A
  1. Serious irregularity - Biased/ Denial of fair hearing
  2. Award being in conflict with public policy - Contradicts fundamental legal policy
  3. Error of law on the face of the award - Clear mistake in applying the law
  4. Award procured by fraud or corruption

Extremely hard to challenge due to the finality of the award.

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36
Q

What are the primary L&T Acts, and what are their significance

A

L&T 1860 (Deasys Act)
- Lease is a contract
- Longer than 1 year needs to be in writing

L&T (Ground Rents) 1978
- Section 9/ 10 sets out right yo obtain the fee simple

L&T 1980
- Right to renew
- Defined business and tenement
- Section 66 outline L/L cannot unreasonably withold request to assign / sub or improve
- Comp for Distirbance / Improvement

L&T 1984
- Increased right for sporting tenants / leases

L&T 1994
- Business equity increased form 3 - 5 years
- 4 Yr 9 month leases
- DOR for Office
- Changed the length of the term requested to 5 - 20 yrs

Civil Law Mischelanious Provisions Act 2008
- Section 47 allowed for all to sign DOR
- Tenant must receive legal advice prior to signing

Land and conveyancing law reform act 2009
- Ban on upward only rent reviews from 28th Feb 2010

Arbitration Act 10
- Flexibility
- Confidentiality
- Speed
- Expertise
- Enforcability

Residential Tenancies Act 2019
- Notice period increased from 90 - 180 days
- Annual Registrations
- RTB determinations are published on website
- Greater powers to RTB to investigate breaches in regulation
- Penalties for improperly increasing rent

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37
Q

What are tenants’ rights to renew?

A

Business Equity (5 Yr/ 5-20 yr)
Long Term Equity (Fixed at 35 yr)
Improvement Equity (Value great than half rental value)

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38
Q

Restrictions to new tennancy

A

Repudiatory breach
Planning to redevelop
Good Estate Management

39
Q

What is compensation for disutrbance

A

When a tenant has a right to claim a new lease but it is ultimately rejected.

40
Q

How would you value compensation for disturbance

A

Compensation for any financial loss incurred with relocation

Payable 1 month from date of agreement

1/3 tenant liabilities + removal & disconnection costs + disruption to business

41
Q

Where is right for compensation for disturbance obtained

A

Section 4 L&T 1980

42
Q

When can a tenant claim compensation for improvement

A

Entitled to payment for improvement made on the tenement

Improvement must add to letting value and is suitable character

Notice to improve must have been served

Not entitled is lease is terminated due to surrendered or unpaid rent

Entitled if lease is terminated for any other breaches of covenant

43
Q

How would you value the contirbution

A

Value asset with and without.
Difference is the value attributed to the improvement

44
Q

What is a DOR

A

Tenant is renouncing rights to a new lease under L&T 1980 / 1994.
Established in 1994 and Civil Law Mischelanious Provisions Act 2008

45
Q

What is a side letter

A

Letter of comfort

Used to clarify terms and grant concessions

Cannot be assigned

46
Q

What are ground rents

A

Rents paid by the tenant for the land, only where the tenant has built the building they occupy themselves and the landlord owns the land.

47
Q

Who is able to purchase the Fee Simple and what is the purpose

A

Tenant who holds land by way of a proprietary lease

Need to serve and S4 Notice outlining intention to purchase

Section 9/ 10 of L&T 1978 set out requirement

48
Q

What are the requirements to acquire the fee simple

A

Permanent building on land

Building cannot be an improvement

Cannot be constructed in contravention of the lease

Must comply with Section 10 of the act: building must have been erected by the tenant

49
Q

What is a tenement

A

A tenement consists of a land covered wholly or partially by building. If partially covered, the land is considered subsidiary and ancillary to the building. Tenement must be held by the occupier by lease or contract

50
Q

What is a lease regear

A

Renogiating the lease during the term.

Often extension of tenants’ commitment either by removal of break clause or extension of term.

In exchange for rebasing the rent or other market incentives.

51
Q

What is yielding up

A

Sets outnconditions on which the property is to be handed back.

52
Q

What are main contents of a lease

A

Date
Parties
Demise
Guarantor
Tern
Rent
Landlord and tenant covenants
Rent review clause
Break clause
User clause
Alienation clause
Maps
Outgoings
Repair clause
Definitions
Schedules

53
Q

What are the three types of leases in relation to the repair of the property

A

Full reparing and insuring (FRI)

Internal repair and insuring (IRI)

Internal repairing (IR)

54
Q

What is a break clause

A

A mechanism within a lease that allows for either party to prematurely terminate the lease prior to the contractual expiry

55
Q

What is a user clause

A

A clause detailing out the permitted use of the demise.

56
Q

What is alienation clause

A

Clause which details out right to assign/ sublet

57
Q

Why do landlords not like sublets below passing rent

A

Can set market precedent

If head lease is forfeited, rent is stuck at lower amount

58
Q

What is Promissory Estoppel

A

Legal doctrine that prevents someone from going back on a promise

Requires promise / reliance and detriment

59
Q

If your client needs a tenant out of the building during the lease, what would you advise?

A

Read lease
Are they in breach of any covenants
If so, you may have ground for forfeiture.
If not, you will have to consider a lease surrender and premium

60
Q

If the same tenants lease expired, how would your advice change

A

Review lease
Is there a DOR in place
If so, serve notice to quit and take back possession.
If not, serve notice to quit and see of the tenant claims relief.
Can refuse on various grounds

61
Q

You have a retail tenant on high Street at the end of a long lease, you are acting for the landlord, what do you advise?

A

Review lease
DOR?
Lease performance
Suggest that if tenant want to stay, they serve and notice of intention to claim a new lease

62
Q

How do you remove a tenant for breach for terms

A

breach of covenant (Exc. Rent)
- Section 14 Notice
- Outline Breach
- The remedy
- Compensation

For non payment of rent
- Letter would suffice demanding possession
- Can re-enter peacefully
- If you cannot re-enter peacefully then the landlord mus issue and ejectment civil bill on titles executed by the local sheriff/ Country registrar

63
Q

What is a CPO

A
  • Allows for local authorities purchase land for Public Infrastructure Projects that are considered for the greater or common good.
  • Landholders should be compensated and should not be in a worse off position as a result
64
Q

What is the process of CPO

A
  • L&T 1919 & 63
  • Affected parties served notice along with newspaper notice
  • Objections on planning or legal grounds
  • Public enquiry
  • Minister confirms
  • Acquiring authority then serves notice to treat (within 18 months(
  • Discussions re compensation
65
Q

What is a notice to treat?

A
  • Fixes valuation date for comp
  • Defines extent of the property subject to CPO
  • Issues time limits
66
Q

What would an affected party be entitled to? (CPO)

A

Severance - Damage caused by taking strip of land

Injurious Affection - Additional damages caused by the new use of CPO lands

Pointe Gourde Principle - Compensation not tied to new scheme as a result of the CPO

Edward Principle - If scheme does not directly use your land then you are unable to reject injurious affection

67
Q

What factors are considered when determining value for CPO

A
  • Value of land
  • Diminution of the retained land
  • Costs associated and fees
  • Disturbance
  • Loss of goodwill and profits
  • Relocation costs
68
Q

If CPO cannot be agreed, how is it dealt

A
  • Referred to Land Values Reference Committee
  • Similar to rent review hearing
  • Governed by arbitrations act
  • Two state appointed arbs
69
Q

What are all third party roles for valuers

A
  • Valuer
  • Negotiator
  • Expert Witness
  • Advocate
70
Q

What is the valuer

A
  • After securing instructions, the valuer provides the client with their opinion of market rent in accordance with the lease terms
71
Q

Negotiator

A
  • Negotiates without prejudice basis with the valuer acting on the behalf of the counter party in an attempt to secure the best possible deal
72
Q

Expert Witness

A
  • If matter proceeds to third party, the valuer adopts the role of expert witness. Duty of care to the court
73
Q

Advocate

A

Represent client, may disclose only what they wish as their duty of care is to client

74
Q

What is a tenancy at will

A
  • No longer a tenancy under Land and conveyancing law reform act 2009.
  • Holding land for an indefinite period of time under the will of the landlord
  • Normally no rental payments
  • Terminated at ease
75
Q

What is Tenancy of sufferance

A
  • No longer a tenancy under Land and conveyancing law reform act 2009
  • Lowest form of tenant
  • Tenant remain in situ
  • No Assent or Dissent from landlord
  • No statutory rights
76
Q

What is an express tenancy

A

Express tenancy may arise when
- Lease expressly states that the tenant can remain in situ after the expiry of lease, provided rent is paid.

  • Fixed term now a periodic tenancy
  • Normally dependent on payment of rent
77
Q

What is an implied tenant

A
  • Tenant remains in situ post expiration
  • Not apart of original agreement
  • Will depend on implied agreement
  • If rent is paid then accepted, then tenancy may be implied
78
Q

What are some cost items for compensation for disturbance

A
  • Loss of profit / Goodwill
  • Pro Fees
  • Cost to seek new premises (agent)
  • Cost in securing new premises (Stamp Duty)
  • Moving costs
  • Staff costs
  • Force sale of stock
79
Q

What is precis of evidence

A
  • Intro
  • Submission / Declaration of truth
  • Location
  • Demise
  • Lease details
  • Factors effecting value
  • Comps
  • Basis of valuation
  • Opinion of value
  • Statement of agreed facts
80
Q

What are effected parties entitled to in CPO

A

Severance
Injurious Affection
Pointe Gourde Principle
Edward Principle
Principle of equivalence

81
Q

What factors are considered in determining the level of compensation for CPO

A

Value of land
Diminution of retained lands
Cost associated and fees
Disturbance
Loss of goodwill and profits
Relocation costs

82
Q

If failure to agree CPO, what happens

A
  • Application to Land Values Referene Committee
  • 14 days after notice to treat
  • 2 state appointed arbitrators
  • Similar to Arbitration
83
Q

What is fixed price contract

A

The contract is fixed at a price. If costs go over, the contractor must cover.

84
Q

What is collateral warranty

A

Third party can sue a contractor, architect, or engineer in the event they have purchased a building that proves to have a defect. Required by developers and lending institutions.

85
Q

What is the process for taking back possession at the end of the lease?

A
  • Serve notice to quit
  • Tenant has 3 months to serve intention to claim relief
  • Apply to the circuit court 1 month after receipt
86
Q
A
87
Q

What Acts govern residential in Ireland

A

Residential Tenancies Act 2004 - Landlord / Tenant Obligations / Rent Regulation / Security of Tenure (Part 4)

Planning and development (housing) and residential Tenancies act

88
Q

What is the process for a breach in residential

A
  • Identify breach
  • Communication and Notice
    Informal: Speak to tenant, outline breach and request rectification in timeframe

Formal notice: If breach persists, issues formal written notice specifying breach and consequences
Review RTB website as they have templates

Dispute resolution

Courts

89
Q

What legislation covers ground rents

A

L&T 1967 - Introduced basic rights
L&T 1978 - Right to purchase expanded
L&T 1984 - Method of calculation

90
Q

What is the requirements to purchase

A

Section 9
- Permanent building / Land ancillary
- Cannot be an improvement
- Cannot be constructed in contravention to lease
- One alternative from Section 10

Section 10
- Building must have been erected by entitled person under lease
- Term no longer than 50 yrs
- Lease was granted by a lessor to the nominee of a the builder

91
Q

What if you cant find the superior landlord

A
  • Apply to county registrar
  • Certificate issued
  • Purchase price paid to the court
92
Q

What are commercial rates

A

Property tax on commercial property, in exchange for the use of public services

93
Q

What legislation covers commercial rates

A
  • Valuation Act 2001
  • Valuation (Amendment) Act 2015
  • Local government and reform act 2014
94
Q

Tell me about the Valuation (Amendment) Act 2015

A
  • Amended 2001 act for the provision of valuation lists
  • Lists ensure calculations are correct and uniform
  • NAV - Estimated annual rental income
95
Q

How are commercial rates calculated

A
  • Rateable valuation is set by the valuations office
  • Local authorities set the multiplier and collect rates
  • Dublin City .277
96
Q

What are the three key rate assumptions

A
  • Occupation is exclusive
  • Occupation must be value of benefit to the occupier
  • Occupation must not be temporary
97
Q
A

APC 2024 (17 decks)

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