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SQE1 - Land Law > landlord's remedies and ending a lease > Flashcards

landlord's remedies and ending a lease Flashcards

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1
Q

landlord’s remedies following breach of the rent covenant?

A
  1. forfeiture (end the tenant’s lease)
  2. action for debt (not practical; if a tenant can’t afford rent, it can’t afford damages)
  3. distress and CRAR
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2
Q

in an action for debt, what is the max arrears that can be recovered?

A

max 6 years arrears

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3
Q

landlord’s remedies following breach of a non-rent covenant?

A
  1. injunction (stop a breach of user provisions; prevent an unauthorised sublease or assignment)
  2. forfeiture (end the tenant’s lease)
  3. specific performance (rare; damages usually adequate)
  4. contractual damages
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4
Q

CRAR

A

from 6 April 2014: landlord is required to serve an enforcement notice on the tenant, giving 7 clear days’ notice that it will seize goods

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5
Q

what happens after the landlord gives 7 clear days’ notice that it will seize
goods

A

tenant can:
- apply for it to be set aside; or
- for its execution to be delayed

provided there is a minimum of 7 days rent arrears

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6
Q

what other limitations are on the tenant’s application to set aside / execution to be delayed? (CHECK THIS: DOES IT MEAN THE CRAR REMEDY ITSELF, OR THE TENANT’S APPLICATION?)

A

the remedy is not available in respect of mixed use or residential premises

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7
Q

what is the effect of giving 7 clear days notice?

A

reduces the effectiveness of the remedy from a landlord’s perspective, because tenants have the opportunity to remove goods from the premises and put
them out of the landlord’s reach.

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8
Q

what is a landlord’s right of re-entry known as?

A

forfeiture

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9
Q

what is forfeiture?

A

landlord’s right to terminate the lease
prematurely for breach of covenant by the tenant

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10
Q

is a right of re-entry legal?

A

yes, it is one of the 5 legal interests

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11
Q

can forfeiture be exercised from a legal lease without an express right?

A

no, needs to be express

can never be implied

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12
Q

can forfeiture be exercised from an equitable lease without an express right?

A

yes, a right to forfeit for non-payment of rent is implied into equitable leases

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13
Q

how does a landlord exercise forfeiture?

A
  • peaceable re-entry; or
  • obtaining a court order
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14
Q

do both methods of forfeiture (court order or peaceable re-entry) apply to both types of breach?

A

yes, both apply to breaches of non-payment of rent and breaches other than for non-payment of rent

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15
Q

where the premises are residential and mixed residential/commercial, can a landlord forfeit without a court order?

A

no. they must obtain a court order

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16
Q

can a landlord forfeit after waiving its right to forfeit?

A

no

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17
Q

examples of landlord waiver

A

Demanding, accepting or suing for rent due after the breach; or

distraining for (seizing) rent due, despite
knowing about the breach.

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18
Q

when may a landlord waive its right to forfeit?

A
  • It is aware of the acts or omissions giving rise to the right to forfeit; and
  • It does some unequivocal act recognising the continued existence of the lease.
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19
Q

can waiver take place inadvertently?

A

yes - e.g., if the landlord’s agent sends out a rent demand where the landlord (though not the agent) is aware of the breach

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20
Q

Where there is a continuing breach (eg failure to repair), when does waiver lasts until?

A

until the next day the
breach continues

meaning minimal impact

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21
Q

where there is a noncontinuing breach (once and for all; one-off), how long does the waiver last?

A

the waiver is permanent

meaning that once rent is accepted, the landlord can never again forfeit for that specific breach

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22
Q

when might waiver operate?

A

breach of rent covenant:

landlord can waive the right to forfeit for failure to pay the previous month’s rent by demanding the
next month’s rent.

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23
Q

what type of breach is non-payment of rent classified as?

A

non-continuing breach

meaning each individual non-payment of rent (ie each missed payment) is deemed to be a separate breach, creating a separate right to forfeit

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24
Q

if each missed payment is a separate breach, what impact does this have on the right to forfeit?

A

creates a separate right to forfeit each time

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25
Q

what does the landlord need to do before exercising its formal right to forfeit for non-payment of rent?

A

formal demand for the exact amount of rent due, between the hours of sunrise and sunset unless:
- the lease expressly waives this requirement; or
- at least 6 months’ rent is in arrears and there are insufficient seizable goods on the premises to satisfy all the arrears to due

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26
Q

when might the landlord not need to exercise its formal right to forfeit for non-payment of rent?

A

Leases usually waive the requirement that the rent be formally demanded by including in the forfeiture or rent payment clause words such as ‘whether formally demanded or not’.

Landlord can proceed to exercise its right by court order or peaceable re-entry

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27
Q

the tenant can then apply for relief. what does relief mean?

A

‘Relief’ means the court’s discretion to allow the lease to continue and thereby end the forfeiture process.

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28
Q

what happens if the the tenant pays into court all arrears and costs before the trial?

A

all further proceedings are stayed

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29
Q

what happens if the the tenant pays into court all arrears and costs at or after the court order?

A
  • court has discretion to grant relief ie to allow the lease to continue on condition that the arrears are paid.
  • When the landlord has re-entered under a court order, the application for relief must be made within six months of re-entry.

Relief is usually given unless the circumstances are
exceptional.

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30
Q

what might constitute exceptional circumstances, where relief may not be granted?

A
  • Where the property has already been lawfully let to a new tenant after the forfeiture
    (Stanhope v Haworth (1886) 3 TLR 34).
  • Where the non-payment of rent is exceptionally bad. No relief was given in Public Trustee v Westbrook [1965] 1 WLR 1160 where no rent had been paid for 22 years, as the site was bombed out and everyone thought that the lease had ended.
31
Q

what if:
a landlord forfeits a non-residential lease without a court order?

A

the court has an inherent equitable jurisdiction to grant relief if:
(a) The rent and landlord’s costs are paid; and
(b) It is just and equitable to grant relief.

32
Q

what if less than six months’ rent
is in arrears?

A

the court has an inherent equitable jurisdiction to grant relief if:
(a) The rent and landlord’s costs are paid; and
(b) It is just and equitable to grant relief.

33
Q

for breaches other than for non-payment of rent, what does the landlord have to do before it can forfeit?

A

serve a s146 notice

34
Q

what info should be in the s146 notice?

A
  • Specify the breach complained of
  • If capable of remedy, require it to be remedied within a reasonable time
  • Require the lessee to make compensation in money for the breach (if the landlord requires such compensation - compensation is not essential)
35
Q

when can a landlord proceed to forfeit either by peaceable re-entry or by obtaining a court order?

A

If capable of remedy and the tenant does not remedy the breach within a reasonable time

36
Q

what constitutes a reasonable time?

A

suggestion (textbooks): 3 months

37
Q

what must the landlord do if the breach is not capable of remedy?

A

the landlord must merely give the tenant enough time to consider its position (e.g., 14 days) before forfeiting (Scala House v Forbes)

38
Q

what breaches are actually capable of remedy?

A
  • Unauthorised alterations
  • Continuing alterations (e.g., failure to repair, unauthorised use)
  • If the lessee did not know of the illegal or immoral use by a subtenant, as long as the lessee takes
    immediate steps to stop the use, including forfeiting the sublease within a reasonable time (Glass v Kencakes)
39
Q

which breaches are incapable of remedy?

A
  • A breach of absolute alienation covenants - not to assign or sublet (Scala House v Forbes)
  • Immoral use, because of the stigma attached to the premises (Rugby School (Governors) v Tannahill)
    Note: Immoral conduct constitutes conduct that the great majority of people would condemn as being immoral (London Scottish Properties v Mehmet)
  • Illegal use (unlawful gaming)
  • Illegal use (spying) - but in this case the landlord was held to have waived the right to forfeit. Obiter: judge would however have given relief from forfeiture if there had not been waiver, because forfeiture was out of proportion (Van Haarlam v Kasner)
40
Q

test for establishing whether a breach if capable or incapable of remedy (Expert Clothing v Hillgate House Ltd)

A

could the harm suffered by the landlord could be effectively remedied by the tenant complying with a s 146 notice and making proper compensation / leaving the landlord with no lasting damage.

41
Q

following Expert Clothing, what is the general consensus?

A
  • most breaches are now technically capable of remedy provided the
    mischief can be put right by making full recompense to the landlord, leaving the landlord with no
    lasting damage.
42
Q

since Expert Clothing, what about breaches of covenant against assignment or sub-letting, and possibly immoral or illegal use?

A

probably still not capable of remedy (Akici v LR Butlin)

43
Q

what does LPA 1925, s146(2) provide?

A

for breaches other than rent, the tenant may apply to the court for relief in:
- the landlord’s action, or
- in any action brought by itself

44
Q

what is considered in a s146(2) application?

A
  • how wilful and blatant the breach was
  • the gravity of the breach
  • the landlord’s motives for wanting forfeiture
  • damage to the premises
  • can the breach be put right?
45
Q

do relief have conditions attached?

A

often yes. Relief is usually given on condition that the breach is remedied and that the tenant undertakes not to breach the covenant again.

46
Q

if the landlord has exercised its right to forfeit by applying for a court order, when must the tenant apply for relief?

A

before the court order is made.

if/once an executed order for possession is made in favour of the landlord, no further relief application is then available

47
Q

if the landlord has exercised its right to forfeit by peaceable re-entry, when must the tenant apply for relief?

A

relief can still be given under s146(2), provided it is applied for in a reasonable time(Billson v Residential Apartments)

48
Q

what does the court consider in the tenant’s application for relief following the landlord’s exercise of its right by peaceable re-entry?

A

all the circumstances, incl:

the speed with which the tenant applies for relief - must be in reasonable time after peaceable re-entry

49
Q

when has the court granted relief to T? (caselaw)

A
  • relief was granted despite the tenant
    failing to comply with the repair and alterations covenants, because the tenant gave a deposit of money to ensure the premises were restored to their original condition at the end of the lease (Hyman v Rose)
  • Relief was granted, despite the use of a nightclub for immoral purposes, because the immoral use had ceased, there was no more stigma attaching to the premises, the tenant was excellent in all other respects, the tenant had offered to sell the lease, and the managing director of the tenant was ill (Ropemaker Properties Ltd v Noonhaven)
50
Q

what has the court refused relief to T? (caselaw)

A
  • relief was not granted to a head-tenant or sub-tenant in the case of a blatant breach of the user
    covenant by an unlawful sub-tenant (St Marylebone Property Co v
    Tesco)
51
Q

is there any additional protection available for tenant from forfeiture for breach of repair?

A

Leasehold Property (Repairs) Act 1938
- any lease (except agricultural holding)
- lease granted for at least 7 years
- at least 3 years left to run

52
Q

what is required by the Leasehold Property (Repairs) Act 1938?

A

in addition to the s146 notice:

  • landlord must inform tenant of its right under 1938 Act to serve a counternotice within 28 days
53
Q

what happens if a tenant serves a counter-notice?

A

the landlord cannot proceed to claim forfeiture or damages without first
obtaining the leave of the court

54
Q

what is the effect of the Leasehold Property (Repairs) Act 1938?

A

The effect of the Act is to limit severely the landlord’s ability to enforce a repairing obligation until
the last three years of the lease

55
Q

what if the notice relates to internal
decorative repairs?

A

the tenant may apply to the court and be wholly or partially relieved of liability to the extent that the court thinks the notice unreasonable

56
Q

what happens to a sublease if if a head lease is forfeited?

A

the sublease is also destroyed

57
Q

does the subtenant have the right to apply for relief from forfeiture?

A

yes, even where the head tenant cannot get relief itself

58
Q

what does the court have the power to do regarding the headlease and sublease?

A

vest the head-lease in the sub-tenant on such terms as it sees fit, including rent

59
Q

what does LPA 1925, s 146(4) provide?

A

subtenant to apply to the court for relief against forfeiture for breach of other covenants

relief will be granted with discretion

60
Q

are there any time limits on applications for relief re s146(4)?

A

tenant must apply within a reasonable time after peaceable re-entry (Billson)

61
Q

what are the ways a lease ends? (5 ways)

A
  1. effluxion of time
  2. notice to quit
  3. break clause
  4. surrender
  5. merger
62
Q

what is effluxion of time?

A

the lease term expires

63
Q

what is the limitation on effluxion of time?

A

some tenants have security of tenure

64
Q

how would a lease end by merger?

A

if the tenant becomes the owner of the freehold reversion

65
Q

how would a lease end by surrender?

A

if the landlord and tenant agree to end the lease

66
Q

how can a lease end by forfeiture?

A

landlord exercising a right of forfeiture in the event of tenant breach

67
Q

how can a lease end by break clause?

A

Either (or just one) party exercising a break clause

68
Q

how can a lease end by notice to quit?

A

Either party serving a notice to quit if the lease is a periodic tenancy

69
Q

For a yearly tenancy, how much notice must be given to determine the tenancy?

A

half a year’s notice to quit to determine the
tenancy.

70
Q

for other periodic tenancies, how much notice must be given?

A

a full period’s notice

e.g., for quarterly, monthly, weekly

71
Q

what does the court NOT have the power to do regarding the head lease and sublease, if the head lease is forfeited?

A

cannot grant the sub-tenant a lease for any longer than the term of the original sub-lease.

72
Q

in the context of surrender; what document is used?

A

deed of surrender

73
Q

which two methods of ending a lease are opposites?

A

merger and surrender

SQE1 - Land Law (16 decks)

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