Landlord & Tenant Flashcards

Question

What are the Civil Procedure Rules?

Answer 1

The procedural code with the aim to enable the courts to deal with cases justly. They were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers.

Answer 2

Deals with how costs are dealt with at litigation. This included a Part 36 offers and making additional sanctions up to 10% of the value of the claim to defendants who do not accept a reasonable offer.

Answer 3

An offer which can be made to settle a lease renewal under The Civil Procedure Rules 1998.

Answer 4

No, but a part 36 is effectively the same.

Answer 5

How the rent should be determined.

Answer 6

compensation payable to someone who has been forced to move from their premises or land, and so they can claim the costs in having to leave.

Answer 7

Relates to damages for a breach of covenant i.e., dilapidations. Puts a cap on the cost of the repairs .

Answer 8

To keep control of the premises and have more bargaining power as a landlord at renewal.

Answer 9

The landlord serves a written warning notice - no less than 14 days before the tenant is due to be bound by the lease - to the tenant confirming the statutory rights that the tenant is about to sign away (usually annexed to the lease). This must be signed by the tenant. If the aforementioned is not possible, the tenant can sign a statutory declaration which will need to be signed and witnessed by an independent solicitor.

Answer 10

A) breach of repairing covenant. B) persistent delay in paying rent. C) breach of other covenant. D) landlord can provide alternative accommodation. E) tenancy was created by a sub-lease of part only and where separate tenancies for the property would result in a substantially lower rent than would be the case if let as a whole on a new lease. F) redevelopment G) landlord’s own occupation (must have owned the property for minimum of 5 years.

Answer 11

For section 25 or 26 notices, no less than 6 months' notice and no more than 12 months' notice. For a section 27, no less than 3 months' notice.

Answer 12

Depends on the situation at the time.

Answer 13

Sets out information landlords and tenants are dutybound to provide each other. For tenants it requires information on their occupancy of the property and any subleases etc. and for landlord it requires information on their interest in the property.

Answer 14

The Street v. Mountford case determined three tests for a lease: 1) Exclusive possession 2) Consideration of payment i.e., a rent 3) A fixed period of time i.e., a term

Answer 15

To be determined between the landlord and tenant, or the court if in dispute, for a term not exceeding 15 years.

Answer 16

By serving a Section 27 notice to vacate upon expiry.

Answer 17

Subject to Contract - An agreement which is not legally binding until a contract has been signed. Without Prejudice - Offers with a genuine attempt to settle made WoP cannot be used against someone in court or relied upon as evidence. Without Prejudice Save as to Costs - Means the correspondence marked as such cannot be disclosed or used as evidence to the court, until a decision on the subject matter has been resolved. Once they deal with the subject of costs, the information marked as such can be shown to the court to show a genuine attempt to settle was made which could have prevented the costly court process, and so they should consider this when awarding on costs.

Answer 18

If there are time limits on actioning the review within the lease.

Answer 19

As per the lease.

Answer 20

The valuation date is the date the new lease starts or the trial date if it has gone to court. However, the court must consider any change in rent between the trial date and date the new lease will commence, being 3 months and 21 days.

Answer 21

Open market rent, upwards or downwards, RPI linked, CPI linked, Turnover.

Answer 22

A lease which the rent must be assessed on the basis of i.e., not the actual lease but a lease to base the rent review on.

Answer 23

A consideration which must be made when carrying out a rent review. These will be set out within the rent review provisions.

Answer 24

Assumptions: As set out within the lease. Usual assumptions would be premises are vacant, fit for use, no premium is paid, tenant has complied with their obligations, the tenant has received the benefit of rent free for fitting out purposes. Disregards: As set out within the lease. Usually disregards are tenant’s occupation, goodwill, tenant’s improvements.

Answer 25

There is a limited right to appeal an arbitration award in court. These include jurisdictional, irregularity grounds or if there is a question of law that arises from the decision.

Answer 26

No, unless in very rare circumstances the court may set aside.

Answer 27

Where there is a lack of detail within a rent review clause, presumption of reality comes into play. The starting point is therefore that the rental value is to be the whole of the demised premises as they exist at the review date on the terms of the existing lease.

Answer 28

Basingstoke and Deane Borough Council v Host Group Ltd [1988] 1 W.L.R. 348 – a case where presumption of reality was adopted due to the omission of a hypothetical lease and therefore the actual lease terms were adopted.

Answer 29

A rent assessed on the basis of the tenant’s turnover, usually a percentage of their gross or net turnover from the premises.

Answer 30

Applies where there are several subleases and is agreed between a superior landlord and tenant. This is usually a basic ground rent and a share of the income received from the underleases.

Answer 31

A fitting out period will sometimes be an assumption within rent review provisions along the lines of 'assuming the tenant has had the benefit of a rent free period for fitting out purposes'. Such a rent free period is typically 3 months, or as the market dictates at the time.

Answer 32

Comparable evidence in real estate valuation RICS guidance note, 1st edition, October 2019.

Answer 33

Apply less weight to them compared to evidence at or before the review date.

Answer 34

Depends on the disregards within the rent review provision. At lease renewal you are directed to disregard them unless older than 21 years.

Answer 35

There is a guidance note titled 'Dilapidations in England and Wales 7th edition Guidance Note (Sep 2016)'

Answer 36

Particularly in the retail market they have become popular due to the poor performance of the high street. The aim of them is that the tenant and landlord share the burden of the difficult times in the market which negatively affect the tenant, and share the benefit where the market thrives and so does the tenant's business. Reviews will change because they will either not be needed, or if they are they will be an assessment of a base rent, where appropriate, or a reassessment of the turnover percentage. Renewals will be interesting because if tenant's request them, landlord's have a strong case not to grant them as found in the case of W (No. 3) GP (Nominee A) Ltd & W (No. 3) GP (Nominee B) Ltd v JD Sports Fashion Plc as they are not an open market rent.

Answer 37

This set the precedent that a pandemic clause should be triggered if non-essential retailers are forced to shut, not if the subject store is forced to close, mostly due to the fact the clause would have no effect otherwise due to the tenant being an essential retailer. This case also set the precedent that a higher rent in exchange of such a clause was not appropriate as most tenants want them and the market has now priced them in.

Answer 38

That the court could not decide on the inclusion of a turnover rent as it was not an open market rent, as required by Section 34 of the Act.

Answer 39

SDLT is less for a surrender and regrant compared to a reversionary lease, due to overlap relief. However, I would advise a client sought expert advice on this topic if asked the question.

Answer 40

WH Smith Retail Holdings v Commerz RI mbH (2021)

Answer 41

The literal meaning of a provision can be corrected if it is clear both that a mistake has been made, and what the provision was intended to say.

Answer 42

I research comparable evidence using internal and external systems and speaking to other agents/surveyors. I collate the information and save it into a comparables folder for the subject property and analyse each deal individually and put these into a table of some sort. Where an adjustment is needed, for example where a deal is IRI but the subject property is FRI, I will reflect this in my analysis of the rent.

Answer 43

Category A – direct transactional evidence. Category B – general market data providing guidance rather than a direct indication of value, such as evidence from published sources, commercial databases, indices, historic evidence and demand/supply data. Category C – other sources, such as transactional evidence from other property types and locations and other relevant background data.

Answer 44

using Chapel Road as an example; the property is an industrial unit and at the review date the industrial market had seen substantial rental growth in the subject area as a result of lack of supply and increased demand which I reported to my client. I also discussed the marketability of the unit with our agency team and they advised me that if the property were to come to the market they would expect to achieve approximately £14 per sq. ft. However, whilst the market showed supply/demand data supporting a rate higher than the evidence ranging from £12 - £13.50 per sq. ft, the target rent was in line with the comparable evidence because this forms the best type of evidence and to manage my client’s expectations.

Answer 45

If a lease was contracted outside the Act, I would advise a tenant that they should pay less than what they would for a lease inside the Act and reflect this in my analysis of comparables. Additionally, I would advise them to commence negotiations as soon as possible for the lease renewal if outside the Act, provided they want to stay in occupation, to ensure a new lease can be agreed as they do not have an automatic right to renew, or if not provide them with sufficient time to make alternative arrangements. If inside the Act, I would advise a tenant to ensure they instruct a solicitor to serve a Section 26 on their behalf in line with the statutory requirements of the Act.

Answer 46

if time was of the essence, I would have advised my client that they follow the procedure and timescale set out within the lease, if there is one, and serve notices where required.

Answer 47

for the purpose of negotiations, I quoted a higher rent to the tenant in my opening email to allow room for negotiations. As negotiations progressed, I revised my offer as a compromise to reach a settlement to avoid the third party process.

Answer 48

I waited until I received written confirmation from them to proceed following my initial recommendations.

Answer 49

If the renewal was not agreed before the expiry date, I would advise the client to not collect rent to avoid creating a periodic tenancy and the tenant inadvertently gaining rights. Alternatively, a tenancy at will could be granted until the renewal is agreed.

Answer 50

lease renewals provide better evidence than rent reviews in most cases because rent reviews vary widely depending on the assumptions and disregards within the rent review provisions.

Answer 51

My example of St Joseph's Business Park in Hove was challenging, insomuch as my counterpart was slow to respond and engage in negotiations, which meant having to consider the best avenue to progress the matter such as: 1) persisting with negotiations and continuing to chase (avoiding costs of third party) 2) make a 3rd party application 3) Serve a Calderbank Letter

Answer 52

None. The aim to was agree and complete the renewal as quickly as possible and serving a S.25 would have dragged negotiations out further. I was instructed in November 2021 and completed in March 2022.

Answer 53

I was of the opinion that a notice shouldn’t be served because this can often delay negotiations. For example, a minimum notice period for S.25 notice is 6 months, whereas I was of the opinion that we should be able to negotiate, agree and complete the renewal in a shorter period. We agreed and completed the renewal within 4 months.

Answer 54

Could have served a S.25 notice, threatened PACT/Court.

Answer 55

To avoid costs and the rent review being dragged out.

Answer 56

it is a letter expressed as ‘without prejudice save as to costs’ which contains an offer to the other party inviting them to settle without taking the arbitration further. It will set out the terms to settle the dispute, principally rent and costs, with a time limit to reply to (usually being 21 days). Derived from the case Calderbank v. Calderbank [1975] 1 All ER 333. If a Calderbank was served to my client, the risk it presents is exposure to costs. Additionally, if the Calderbank offer is accepted, then one of the parties may have agreed a worse deal than they could have achieved at third party.

Answer 57

the key parts are the terms in dispute, principally rent and costs, with a time limit to reply to. I raised it as an option as it protects my client on costs and avoids taking the arbitration further.