Landlord & Tenant Flashcards
What must be included in a section 25 notice?
Name and address of the landlord an tenant
Address of the property
Notice of the date to end the tenancy
Section 23 states that to gain protection under the act, what 6 basic elements are required under a business tenancy?
It is a tenancy
The premises must be used for a business
Occupancy for more than 6 months
What are the 7 grounds for refusal of a new lease under section 30?
A. Breach of repairing covenant
B. Persistent late rent payment
C. Other substantial breach
D. Provide suitable alternative accommodation
E. Uneconomic subdivision (Compensation payable)
F. Demolition or reconstruction (Compensation payable)
G. Owner occupation (Compensation payable)
A-E are discretionary and the court will decide whether it is reasonable. F & G are mandatory
Give an example of a court case in L&T regarding the difference between a lease and a license
Street Vs Mountford: The court deemed that despite being labelled a license agreement, the agreement granted
What is the difference between a lease and a license?
A lease passes no interest on the land but only makes lawful what would otherwise be unlawful - Murdoch 1998
A license is:
A right to enter a property
A personal arrangement between licensor and licensee
Licenses acquire no interest in the property
The differences:
A lease can be assigned
Leases cannot be terminated until they expire
Leases provide the occupier with an estate in the land
A Lease must grant exclusive occupation, must have payment of rent, a specified term, if longer than 3 years, must be signed and registered as a deed.
Leases cannot be terminated until they expire, licenses can usually be terminated at any time by either party.
Leases can be assigned, licenses can’t
If exclusive possession is longer than 6 months, it is likely to be a Lease.
Section 37 - If the Landlord obtains possession, tenant is due compensation for disturbances:
If compensation is payable by the Landlord after they have served a section 25 notice, how is the compensation calculated?
If the tenant had been in occupation for less than 14 years, the compensation payable is 1x the rateable value at the time of the s. 25 being served.
If more than 14 years, the compensation payable is 2x the rateable value
If there is no mention of the Landlord & Tenant act 1954, is the lease inside or outside of the security of tenure provisions?
It is inside, as a simple or statutory declaration must be made to exclude a lease from these provisions
What needs to be included in a section 26 notice?
This must be served not more than 12 months and not less than 6 months prior to the new tenancy commencing
It must be in the prescribed form and include:
The tenant’s proposals for a new lease, including the proposed rent
If a landlord wishes to serve a counter notice, this must be done within 2 months
What is a Calderbank letter?
This is a letter that is served seeking to achieve early resolution of a dispute and the escalation of costs and must be headed “Without prejudice save as to costs” as the losing side will have to cover the other side’s recoverable costs (avoids the equal awarding of costs)
What is the difference between an Arbitrator and an Independent expert?
Evidence - Arbitrator uses information provided and arguments submitted by the parties whereas Independent expert has a duty to undertake their own investigation and do not have to consider the evidence provided.
Negligence - Arbitrator cannot be sued and is not liable for negligence but an independent expert can be liable for damages because of negligence.
Arbitrators act under the Arbitration Act 1996, no legislation for independent experts
What is an expert witness?
A chartered surveyor that must provide and be seen to be providing impartial and objective evidence
They have a duty to the court
The evidence must be the independent work of a surveyor
They must believe that the facts they rely upon are true
Where should a rent review be documented?
Within a rent review memorandum (signed by the parties), kept with the lease
What is a Calderbank?
Using this can achieve early resolution of a dispute
A letter that must be served with “Without prejudice, save as to costs”
The losing party will have to pay the other side’s recoverable costs
What do you do if a Rent Review dispute is going to third party?
READ THE LEASE - Establish the method of determination (in the rent review clause)
Arbitrator or Independent Expert?
Time of the Essence - What does this mean?
Give an example
A party can only request action on an aspect of a lease such as a rent review or break clause within a given time period. Failure to trigger the rent review within the time limit means that the right is lost
Example: United Scientific Holdings Vs Burnley Borough Council (1977)
Outcome: Time is not normally of the essence
What is a wayleave?
A temporary right that receives an annual payment
Example: It provides an electricity company with the right to install and retain their apparatus
What is an easement?
This is a permanent right and receives a capital payment (can be registered by land reg)
It allows one party rights to enjoy use of land owned by another
What does without prejudice mean?
During the period of negotiations, the opposing party cannot rely upon any documents that are labelled “without prejudice”
Talk me through your lease renewal of the telecoms mast in Cambridge
I received instructions from my client to renew their lease of a mast in Cambridge, this was under the electrical telecoms code and therefore the site was valued on a no scheme basis and a nominal value was applied. I agreed this rental value with the Landlord subject to a £2,000 expedited completion payment for agreeing terms in good time. I then sought approval from my client before instructing their solicitors with the agreed HOT’s.
How can a lease be drafted outside the Act?
Section 38A sets out how to contract a lease outside the act:
The Landlord is to serve a notice on the prospective tenant , warning that the proposed lease will not be protected, known as a health warning. Then the tenant must make a declaration in response confirming they have received the notice and that they accept it. This must occur before the lease is signed.
Two types of declaration:
simple declaration is given when the parties have 14 days or more before committing to the lease.
Statutory declaration is given when the parties have less than 14 days prior to committing to the lease. This must be made in front of an independent solicitor.
What are the contents of a rent review memorandum?
Name of the Landlord & Tenant
Address of the property
Date of the lease and rent review
Confirmation of the new rent agreed
Signed by both parties with date
Is it better to use an Arbitrator or independent expert in a rising market?
An independent expert would be better in a rising market but an Arbitrator would be better in a falling market.
What is an Expert witness?
An expert witness is a person engaged to give an opinion based on experience, knowledge and expertise. The overriding duty of an expert witness is to provide independent, impartial and unbiased evidence to the court or tribunal.
What is holding over?
This occurs in a section 24. The tenancy does not expire by effluxion of time but only when a party serves notice. So if you are holding over, neither party has served notice.
Why would you choose Market Rent over RPI?
It is predominantly a negotiation point but realistically it is a gamble over which will perform better/worse.
What is the difference between a hostile and non-hostile?
What ways can a lease be terminated?
Forfeiture
surrender and negotiation
break clauses
Lease expiry
What are sections 24-28 of the 1954 act?
24: Security of tenure provisions and continuation of tenancy (holding over)
24a: Interim rent
25: Landlords notice to end or renew the lease (hostile/non-hostile)
26: Tenant’s notice to seek new Lease
27: Tenant’s notice to terminate the lease
28: Renewal of tenancy by agreement - The old lease under security of tenure falls away
Case Law surrounding Landlords grounds for refusal
Francis & Cavendish Hotel - look up
What would be detailed within a rent review Clause?
Assumptions / disregards
Dispute resolution procedure
basis of the review
frequency of the review
If there is no hypothetical term within the lease, what term would you use?
The remainder of the term
Is there anything in the rent review that can impact rental value?
If there is a long hypothetical term
When does the government plan to remove RPI?
Plans to replace it with CPI by 2030.
Talk me through your lease renewal of the telephone mast in Cambridge
My client’s 10 year lease was set to expire in one year, so I advised that they issue a section 26 notice to renew their lease as the lease was protected under the 54 Act prior to reaching the 6 month period before the window expired as I was aware the Landlord was keen to take back possession of the land. I was able to secure terms at the passing level due to the comparable evidence showing no uplift in value.
Talk me through your rent review of the retail shop in Reading
Landlord initiated the review. However, after reading the lease, I realised there was time of the essence wording included. The Landlord’s trigger notice fell outside of the prescribed window and therefore the review was not due. The rent remained at the passing level.
How are costs calculated for arbitration calculated?
What is an Authorised Guarantee agreement?
How do you value Leases under the 54 Act?
What CPD have you undertaken on the 1954 Act?
What is the difference between a Lease renewal and rent review?
What leases are not covered by the 54 Act
Agricultural, mining, licenses, Tenancies less than 6 months
What is the counter-notice period?
2 months
What is the role of section 34?
Allows the court to determine the level of rent due under a new lease using comparable evidence.
Was the renewed lease protected?
No because of new legislation
What is section 38?
Contracting outside the act
