Landlord & Tenant Flashcards
What information should you source before starting and instruction?
- Conflict check
- Terms of engagement
- Copy of lease, deeds, plans, RR memos
- Management info
- Licences
- Contact details
- Comps held by client
What might be the basis of a fee in a L&T instruction?
- % new rent
- % saving from quoting
- fixed
- hourly (using third party matters)
- incentivised
Please explain the step by step process of a L&T instruction.
- conflict check
- terms of engagement
- understand objectives
- review relevant documents
- LR protected? RR time of essence?
- inspect and measure
- MR val
- Report recommendations
- agree strategy and get instruction
- negotiate
- LR instruct sols. RR document memos.
What is the significance of a “without prejudice & subject to contract offer”?
Without prejudice = during negotiations, opposition cannot rely on documents labelled like this in litigation. In RR, cannot be seen by Arb / IE
Subject to contract = until the contract completes, this cannot be taken as binding
How does a licence differ from a lease?
It is a personal agreement that creates a right to enter a property. It does not acquire any interest in that property, so can be terminated at any time by either party.
What is the key caselaw to determine a lease from a licence?
Street v Mountford
- Exclusive occupation
- Rent
- Term
What is the general valuation basis of a RR?
Market rent
UORR
Time not of the essence
What are the common assumptions at RR?
- Willing LL & T
- VP
- Fit for occupation
- Repair
What are the common disregards at RR?
- Goodwill in the location
- Occupation (Current)
- Improvements
What is the hypothetical term and how who you know what it is at RR?
The assumed term used to calculate a suitable MR at RR.
The lease will usually specify the assumed term in the RR provisions. If it doesn’t, the assumed term is equal to the remainder of the actual term.
How do you know if time is if the essence in a rent review?
It will clearly state it in the rent review provisions. If it isn’t stated, it is assumed time is not of the essence.
United scientific holdings Ltd v Burnley BC
What is a deeming provision?
Clause found in old leases. When the LL specifies the rent in the RR notice, the T must respond with an appropriate counter notice. Failure to do so will set the rent at the LLs proposed level.
What represents the best evidence at RR and what dictates this?
Handbook of Rent Review:
- OML
- RR / LR
- IE determination
- Arb award
- Court determination
Comparable evidence in RE Val, 2019
- Direct comparables
- General market data
- Other sources
What is the purpose of a Calderbank?
The achieve an early resolution and to prevent costs from escalating.
Please outline the key elements of a calderbank.
Must be a genuine offer, not just a pressure mechanism.
Labelled “without predict & subject to COSTS”
Set time limit, usually 21 days but can be less.
Losing side at third party or costs incurred after time limit will be paid by other side.
What is the cost of an RICS DRS a application?
£425
Please describe the key elements of an arbitrator.
- Arbitration act, 1996
- can award costs
- can only use evidence submitted
- must find between parties ranges
- can order disclosure (s34)
- immune to negligence
- can be appealed
- Irregularity
- Point of law
- Jurisdiction
Please outline the key features of an independent expert.
- RICS GN ‘IE determination, 2016’
- make own investigations
- no power of disclosure
- costs depend on lease. At best, can only award own costs
- can be negligent
- cannot be appealed
What are the differences between an arbitrator and an Independent expert?
Arb / IE
Evidence provided / own evidence
Appeal / No appeal
No negligence / negligence
Disclosure / no disclosure
All costs / limited to no costs
If you were acting for a tenant in a falling market, would you prefer an arb or IE? Why?
IE - Often have more detailed understanding of the market and can make own investigations. They will appreciate market is falling and are more likely to find in your favour.
If you were acting for a tenant in a rising market, would you prefer and arb or IE? Why?
Arb - they are reliant on the evidence provided to them and cannot make their own investigations. Decision also has to be fully based on the evidence so cannot make an inference regarding the market.
If you were acting for a landlord in a rising market, would you prefer an arb or IE? Why?
IE - more detailed knowledge of the market and ability to make their own investigations.
If you were acting for a landlord in a falling market, would you rather have an Arb or IE? Why?
Arb - reliant on the evidence provided and cannot make an inference as to the state of the market.
What is an advocate?
Represents a client at a court hearing. Duty is to the client, not the court.
What governs expert witnesses?
RICS GN ‘Surveyors acting as expert witnesses, 2014’
What are the key elements of ‘Surveyors acting as expert witnesses, 2014’?
- Duty to the court, not the client
- Impartial evidence
- Evidence must be independent work
- Must believe in facts, evidence, opinion
What are the key elements of a RRM?
- Names
- Address
- Dates (current and RR)
- New rent
- Signed
What defines a business tenancy?
S23 LTA 1954 (II)
- Is a tenancy
- Used for business
- Occupation of at least part
- Occupation min. 6 months
- Must not be exempt tenancy
- Competent LL
What allows a protected lease to ‘hold over’?
S24 LTA 1954 (II)
Please explain the key elements of a S25 notice.
Max 12 months, no less than 6 months.
Relates to whole demise
States termination date
Must be hostile (w/ s30 ground) or non-hostile (w/ new lease terms)
What are the key elements of a S26 notice?
Max 12 months, no less than 6 months.
State proposal for new lease terms.
If LL opposes renewal, 2 months to counter notice.
What is a S27 notice?
Tenant notice to terminate the lease, not renewing.
Min 3 months notice. Once served, irreversible.
T can vacate property before contractual end date meaning no notice required.
—> esselte AB v Pearl Assurance PLC, 1997
How would you advise a landlord in a rising market at LR?
If the market looks likely to continue to rise, serve 12 month notice. If rising but could taper off, 6 month notice. Could also not serve a notice but rental uplift could be some time away.
How would you advise a landlord in a falling market at LR?
I would recommend serving a 6 month notice ASAP to limit the fall in the market rent. Alternatively, could not serve notice to continue to collect the higher rent but risks T serving notice.
What are the various grounds under section 30 of LTA 1954 (II)?
- Breach in repair covenant
- Persistent delay in paying rent
- Other substantial breach
- Alternative accommodation
- Uneconomic sub-division
- Development
- Owner occupation
Which of the S30 grounds are discretionary? Which require reasonable intention? Which require compensation?
Discretionary = repair breach, rent delays, other substantial breach, alternative accommodation and uneconomic sub-division.
Reasonable intention = alternative accommodation, development, owner occupation
Compensation = uneconomic sub-division, development, owner occupation
What are some key bits of caselaw relating to s30 grounds?
Development
—>S. Francis Ltd v cavendish hotel (London)
Rent delays
—> Vivienne Westwood v conduit st. Devs
Owner occupation
—> associated British ports v Humber oil
What section governs compensation for protected leases? What are the rules?
S37
Sub-14 yrs continuous = 1 x RV
Plus-14 yrs continuous = 2 x RV
LTA 1927
Compensation for tenants improvements
What is the maximum term for a new lease determined by the court?
15 years
When is the valuation date in a lease renewal?
The valuation date will be the day of commencement for the new lease.
If the renewal goes to court, the valuation date will be 3 months 21 days after the court determination.
- 3 months for T to serve S27
- 21 days to appeal court decision
What section governs interim rent? Please could you provide some detail as to the purpose and process of interim rent.
S24a
The rent payable by a business tenant between the termination of their old tenancy and commencement of the new tenancy.
Either LL or T can apply. ‘Appropriate date’ is always 6 months from the service of the notice. It assumes an annual tenancy at MR.
How would a tenant who is unsure who their landlord is find this out?
Serve a S40 notice. Can be served in final two years of tenancy by either side. No limit on how often it can be served. Other side must respond in one month.
Purpose is to allow a party to know who they should be serving their notice to.
What constitutes a “competent LL”?
Set out in S44. This is who a tenant must serve notice to.must either be:
- the freeholder
- a leaseholder with more than 14 months remaining in their lease.
What are the third party dispute options at lease renewal?
County Court or PACT
Please could you give an overview of a count court lease renewal?
Governed by Civil Procedure Rules, 1998.
Presentations of evidence are made to the court where upon a judge will determine the final verdict.
Can be slow, costly and uncertain.
Can a calderbank be served at a lease renewal?
No, a calderbank can only be served at a rent review. There is a lease renewal alternative knows as a ‘Part 36 offer’ under the civil procedure rules. It’s open for 21 days and must be a genuine attempt to settle.
Please could you outline what PACT is?
PACT under the RICS and Law Society, 1997.
Professional arbitration on court terms. Makes the LR become more similar to a RR. Parties decide what is agreed and what isn’t. The RICS or Law Society then appoint an arbitrator to give a binding decision.
What are the benefits of PACT?
Surveyor not judge
Faster
Cheaper
More flexible
Avoids court
What covers the process of a lease renewal outside of the protection of LTA 1954 (II)?
S38a LTA 1954
At end of lease, T has no right to renew. For lease to be contracted out, must clearly say it. Lease that says nothing is contracted in.
What advice would you give to a landlord who is dealing with an unprotected lease that is coming to an end?
Either ask the tenant to leave or agree a new lease with the tenant outside the act. If the tenant remains in occupation after the contractual expiry of the lease, put the rent on stop. Acceptance of rent after lease expiry can create a protected lease.
What steps must be taken to contract a lease outside the act?
Serve tenant a ‘health notice’ stating the lease will not have the protection of the Act. Must get T’s acknowledgement via declaration. Either
- Simple dec = given with 14+ days to lease start; or
- Stat dec = given with sub 14 days to lease start. Solicitors present when signing.
What is BNPPRE fee structure for both LLs and Ts?
LLs = fixed fee plus 5% new rent
Ts = fixed fee plus 10% saving from quoting
What is the impact on a rent review of the hypothetical term?
If it is longer or shorter than the market norm, could adversely impact rent.
What are the elements in section A of the hierarchy of evidence in Comparable Evidence in RE valuation 2019?
Direct comparables
- Virtually same, recent, full information, completed
- Similar, recent, full information, completed
- Similar, recent, some information, completed
- Similar, agreed
- Similar, asking prices
Why are IE determinations considered superior evidence at RR compared to arb awards or court determinations?
IE can make independent investigation to come to own decision.
What are s24-s28?
S24 = Holding over S25 = LL notice S26 = T notice S27 = T notice to end S28 = Renewal of tenancy by agreement
What section of the Act governs the basis for a protected LR?
S34
- MR
- Max 15 years
- 21 year rule
- disregard goodwill and occupation
Please outline some terms that would impact the rental value of a propery.
- alienation
- protected
- rr provisions
- rr regularity
- user provisions
What are the main provisions of an institutional lease RR clause?
- 5 yearly
- Market rent
- Upwards only
- Standard assumptions
- Standard disregards
- Time not of the essence
- 10 year assumed term
- IE or Arb
What is a Calderbank letter? Why might you serve one?
A calderbank letter is an offer to settle a rent review quickly and to stop costs escalating. Must be genuine.
They are out for acceptance for a set time (usually 21 days). After this time, the offer remains open for acceptance, unless rescinded, however if accepted after the date, the other side will be liable for any costs incurred. Therefore, also a pressure tactic.
What does ‘Time is of the essence’ mean and what is the relevant case law?
Means there is a finite time to respond to something before the option expires.
Leading case law is United Scientific Holdings v Burnley. General assumption at rent review is time is not of the essence unless stated.
How do you treat tenant’s improvements at rent review? How does this differ from a lease renewal?
Tenant’s improvements are to be disregarded at rent review. At lease renewal, the 21 year rule applies under S34 of LTA 1954 (II).
How would you contract a lease outside the protection of the LTA Act 1954?
Governed by S38A.
- Serve ‘Health Warning’ to tenant
- T must make declaration in response:
- Simple Dec - over 14 days
- Stat Dec - Sub 14 days, in front of Sols.
What is the significance of O’May v City of London Real Property, 1982?
Relates to modernisation of lease terms.
Does a tenant have to serve a S27 to terminate their lease?
It is one way to do it. Alternatively, they could vacate the property and hand back to keys on the contractual expiry date.
Esselte AB v Pearl Assurance plc
What is the likely timetable if parties cannot agree a new rent at rent review? How does this differ at lease renewal?
Rent review
- Make an RICS DRS application
- Third party appointed (Arb or IE)
- SOAF / Written representations
- Award / Determination
Lease Renewal
- Tenant must make a court application (or agree out of court PACT)
- Court date set (or can revert to in court PACT)
- Submit SOAF
- Wait for determination (or award at PACT)
What is a legal case relating to where the landlord refused the tenant the opportunity to renew a business tenancy for owner occupation?
Associated British Ports v Humber Oil
- Owner occupation
- Court found in LL favour
How would you initiate a RR if acting for the LL?
- Review the lease to check the provisions e.g. time of the essence / Deeming provision
- Serve trigger notice accordingly
What court do you apply to for a protected lease renewal?
County Court
Could be high court for complex issues.
In an unprotected lease, what tenancy is formed upon lease expiry when the tenant continues to occupy?
- Tenancy at will if negotiations under way for new lease
2. Periodic tenancy if no communication had.
How would you advise a landlord on whether to trigger interim rent negotiations?
If the property was overrented and the rent has fallen, I would advise they do nothing. If the property was significantly under rented, I would advise they trigger interim rent negotiations.
What is the presumption of reality at rent review?
That the rental value is to be calculated on the whole of the demised premises, as existed at the rent review date.
What are fixtures and fittings?
Fixtures = Attached to the property eg. Toilet
Fitting = Not attached (including screw and nail) like shelves.
Outline each section of the Act relevant to LRs
23 = Application of Act 24 = Security of Tenure and Holding Over 25 = LL Notice 26 = T Notice 27 = T Notice to vacate 28 = Renewal by agreement 29 = Order by court for new tenancy 30 = Grounds for opposition 32-5 = Terms for new lease 34 = Basis of value 37 = Compensation
What case law relates to the hypothetical term?
Canary wharf investments v Telegraph limited
How long does a landlord have to oppose a S26? How would they do this?
2 months. Must serve counter referencing S30 ground to oppose renewal.
What were the rent review provisions in your Finsbury RR?
OMRV, 5 year UORR, time not of essence, standard assumptions and disregards, 10 year assumed term.
What was the passing rent in Finsbury, what was your ERV and what was the LLs quote?
£182k passing, £230k ERV, £345k LL quote
What level of rent was your calderbank at in Finsbury?
£230k
What was the purpose of the calderbank in Finsbury?
To settle the rent review, preventing time delays and costs.
What did you adjust for in the calculation of your ERV in Finsbury?
Reduced visibility, restricted user, quantum.
What were the dispute provisions under the lease in Finsbury?
Arbitrator
Which would have been more beneficial, an Arb or an IE in Finsbury?
Market had risen and sentiment was good so likely an Arb.
How large was your unit in Finsbury?
4,570 sq. ft.
What were the salient terms in your Strand lease?
The lease was protected. Open user and alienation provisions.
What did you consider in calculating your ERV on Strand?
Overhang, two entrances, off prime location, quantum
What was the tone of the pitch and what was your ERV on Strand?
Prime was £300 ZA. We were calculating an ERV at £275 ZA which reflected £420k pa.
What was the area of your unit on Strand?
5,775 sq. ft. (1,880 ZA)
What was the passing rent at Strand?
£400k
How big was the tenant’s extension in Hornchurch?
750 sq. ft. Double the size.
What adjustments did you make in calculating your ERV in Hornchurch?
Location, F-D, restrictive lease terms.
What section of the Act governs tenant’s improvements in Hornchurch?
S34
What is the rule relating to tenant’s improvement under the Act?
You are to disregard tenant’s improvements for 21 years from completion.
What was your ERV with and without tenants improvements in Hornchurch? What was the passing rent?
Passing rent was £25,500 pa.
ERVs were £21,000 pa. and £30,000 pa.
Why did you advise not serving a notice in Hornchurch?
The rational for not serving a notice was that the tenant had held over for so long paying an above market rent that it could be best to leave them doing this.
What was the alternative advice you gave to not serving a notice in Hornchurch?
To serve a high quoting S25 for 6 months to cap the rental decline or make the tenant consider vacating the property.
What were the risks if the tenant served a notice in Hornchurch?
S26 for 6 months meaning the rent reduction could happen sooner or S27 representing a void risk.
What was the outcome of your Hornchurch case?
Tenant held over until COVID-19. Then they served a S26. Agreed rent reduction to £20k pa.
What was the RR basis, assumptions and disregards in Wandsworth?
OMRV, UORRs, 5 yearly, time not of the essence, standard assumptions and disregards.
What was the third party resolution provision in your Wandsworth case?
Arbitrator
What was the footfall dynamic of the high street in Wandsworth?
Headed southwest away from the unit. Unit off prime and affected by main road passing in front of it.
What was the passing rent and what was your ERV in Wandsworth?
Passing £65k pa
ERV £60k pa
What did the LL quote in Wandsworth?
£75k pa
What is a deeming provision? Why did you check for this in Wandsworth?
Old lease provision that sets a timeframe for the tenant to oppose the rent proposed in the LLs notice. If missed, rent is fixed.
What adjustment did you make for the second entrance in Wandsworth?
5.00%
How else could you have factored in the value of the double unit in Wandsworth?
Double zoned unit. Chose not to due to there being no retail prescience on the second street.
What did you get from looking at old proformas in Wandsworth?
It showed how the value of the second entrance had previously been calculated at the unit. Others also showed values attributed to other more beneficial returns in the local area.
Why did you advise the service of a calderbank in Wandsworth?
Conclude negotiations
Protect my client with regards to costs
Pressure other side as was confident in my ERV
How does a calderbank put pressure on the other side in Wandsworth?
They had made an optimistic quote. I was very confident in a nil increase. Calderbank applied pressure as if they ignored and progressed some or all of the way to third party, they were likely to incur significant costs.
Can you serve a calderbank on an independent expert?
Yes - however the wording of the lease will dictate if it carries any weight. If the IE can determine costs, it can have weight.
What are the costs of third party at RR?
£5k each side for Expert Witness reports
£10k Arb / £5k IE
TOTALS: £20k (Arb) / £15k (IE)
IE can be added £5k if both sides request report.
Why is an Arb more expensive that an IE?
Arb has a report to deliver with their award. IE does not unless sides request report.
What is the hourly cost of IE / Arb / Expert Witness?
Roughly £325-£350 per hour
What determines the rental value at lease renewal?
S34 of LTA 1954. Might reasonably be expected to be let in the open market by a willing lessor, disregarding occupation, goodwill, improvement.
What determines the rental value at rent review?
The rent review provisions of the lease.
What are the rules with regards to discounting rent free at rent review compared to lease renewal? What case dictates this?
At RR, must discount three months rent free assuming fitout and them amortise the remainder of the rent free. At lease renewal, amortise all of the rent free.
Britel Fund Trustees Limited v B&Q
What might you consider when formulating a calderbank offer?
The ERV that you would offer the calderbank at less the amortised cost of third party. Say for an Arb with 5 years remaining, take £4k off the ERV to reflect the £20k over 5 years.
What is the latest date an interim rent application can be made?
6 months after the completion date of the lease.
When you say arbitrators cannot find their own evidence, is this always correct?
If they are a specialist in an area, and are already aware of specific information in the area, they can bring this to the attention of the parties and ask them to comment.
What is included in an Expert Witness report?
Agreed evidence with comments and devaluation showing how they came to their view of the rent.
Why are lease renewals above rent reviews in the hierarchy of evidence?
Because the tenant has the option to walk away from the deal if they do not agree with the terms.
How would you deal with tenant’s improvements at LR? How does this differ at rent review?
LR has 21 year rule under S34 LTA.
RR relies of two clear lease terms of 30 years.
Additional example acting for the tenant?
Cosham
