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SQE 1 - Land Law > Landlord + tenant > Flashcards

Landlord + tenant Flashcards

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1
Q

How is a parol lease created?

A

Must be for three years of less
Must take effect in possession
Must pay best rent that can be reasonably obtained.
Landlord must not charge a fine.

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2
Q

When is an equitable lease created under the doctrine in Walsh v Lonsdale

A

When there is a contract complying with s2 LPMPA 1989 and the parties have clean hands.

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3
Q

What factors are required for the creation of a lease?

A

Estate must be for duration permitted for leasehold estate.
Must give exclusive possession.
Must have correct formalities.

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4
Q

What are the key features of a licence?

A

Creates a personal right, cannot be assigned, does not benefit from statutory protections.

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5
Q

A person attempts to create a lease for life. How long does the lease last?

A

For a fixed term of 90 years which ends on the death of the tenant.

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6
Q

What is the meaning of exclusive possession?

A

The ability of the tenant to exercise control over the land.

Tenant may exclude all from the land.
Extends beyond mere exclusive occupation - tenant does not need to be in occupation to enjoy exclusive occupation.

If there is a statement that exclusive possession not given doesn’t prevent there being a lease if this is the truth as long as the occupier has control over the property.

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7
Q

An employer allows an employee to live in the employer’s accommodation for the better performance of their duties. Is this a lease or a licence?

A

A licence. Common for farm workers and members of the armed forces.

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8
Q

Two parties enter into an agreement giving them possession of rooms in a property. The agreements were signed on the asme day but had a provision allowing the owner to share occupation. Is this a lease or a licence?

A

A lease as it is clear the agreements were to be read together. The second provision is a sham clause which will not be used.

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9
Q

What does the payment of rent indicate?

A

Supports the view the parties intended to enter into the formal relationship of landlord and tenant.

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10
Q

What are some key covenants granted by tenants in a lease?

A

-Rent
-contribution to insurance
-repair
-alterations
-alienation

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11
Q

What are some key covenants granted by Landlords in a lease?

A

Quiet enjoyment
insurance

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12
Q

In the absence of express obligation, what covenants will be implied by the landlord?
Quiet enjoyment
Obligations in respect of the fitness of the property.

A

Quiet enjoyment
Obligations in respect of the fitness of the property.

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13
Q

What obligations are on the landlord in respect of the fitness of the property?

A

In the case of a dwelling house under s11 LTA 1985 the landlord must:
keep in repair the structure of the dwelling house
keep in repair supply of water, gas, electricity and sanitation
keep in repair installations for space hearing and water heating.

Landlord only liable for disrepair once such disrepair has been notified to them.

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14
Q

What is alienation?

A

The disposal of the existing leasehold estate by the tenant either by assignment, sub-lease, mortgage or parting with possession.

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15
Q

What is assignment?

A

Where the tenant passes all of their interest under the lease to a new tenant and steps out of the picture. No new lease is created the existing lease changes hands.

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16
Q

What is a sublease?

A

A lesser estate is carved out of the superior estate. A new lease is created. This must be for a shorter duration than the head lease.

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17
Q

When is alienation permitted in a contract? Give details of some covenants relating to alienation in a lease.

A

Open contract provision - lease doesn’t contain covenant against alienation tenant has complete freedom

Absolute prohibition - covenant by tenant not to deal with the lease (relates to any kind of alienation)

Qualified covenant - covenant by tenant is not to assign without landlord’s consent

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18
Q

What is the effect of s19 LTA 1927 on alienation covenants?

A

Converts any qualified covenant into a fully qualified covenant.

Obligation where the landlord has received a written application to:

Give consent where reasonable
Give written notice of their decision
Where consent withheld - the written reasons for refusal.

In relation to new leases landlords and tenants can agree in advance:
circumstances in which landlord may withhold consent
conditions subject to which any consent to assign will be subject.

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19
Q

When is a lease considered an old lease?

A

When it has been created prior to 1 January 1996

20
Q

When is a lease considered a new lease?

A

When it has been created post 1 January 1996.

21
Q

Under an old lease, what is the liability of an original tenant in relation to covenants?

A

There is a relationship of privity of contract between the original landlord and the original tenant. Even if this is not expressed within the lease, the continuing obligations will be implied under s79 LPA 1925.

If the original tenant assigns the lease. T1 remains subject to burden of the covenants but ceases to be entitled to the benefit of the covenants.

T1s contractual liability lasts for the duration of the lease.

22
Q

Under an old lease, what is the liability of an assignee in relation to covenants?

A

There is a relationship of privity of estate between the landlord and T2.

This means there tenant is entitle to exclusive possession, liable to pay rent and is the party in whom the lease is currently vested.

T2 is liable for breaches of all real covenants.

An assignee is liable for the relation of the lease vested in them but common for landlord to insist assignee covenant’s directly with them so there is privity of contract.

23
Q

What is a real covenant?

A

Covenants which touch and concern the land:

must benefit the dominant owner for the time being
must affect the nature and quality of the land
must not be expressed to be personal.

Examples include paying rent, repair and use of the property.

24
Q

In an old lease, what happens if T2 fails to comply with an obligation, who can the landlord pursue?

A

T1 via privity of contract

T2 via privity of estate

Both of them.

25
Q

In an old lease, an original tenant is sued as a result of a breach.

A

How can they take action?
At common law - against the tenant in possession at the time of the breach.

Indemnity covenant - express in the deed of assignment.

Absence of express indemnity covenant this is implied into assignment for value by s77 LPA.

26
Q

What happens to the covenants in an old lease on the sale of the freehold?

A

The benefits and burdens of the landlord’s covenants which touch and concern the land are transmitted to the new landlord under ss141 (benefit) and 142 (burden) LPA 1925.

The new landlord can sue the original tenant via privity of contract or the current tenant via privity of estate.

27
Q

What is the position of the tenant in relation to covenants under new leases?

A

The tenant is bound by covenants only whilst the lease is vested in them.

Upon assignment of the lease all covenants pass to the assignee unless they are expressed to be personal as per s3LT(C)A 1995.

Don’t need to touch and concern the land.

The assigning tenant ceases to be bound by the covenants and are no-longer entitled to the benefit as per s5 LT(C)A 1995.

Landlord can only breach current tenant.

28
Q

What is the position of the landlord in relation to covenants under new leases?

A

The new landlord takes the burden of the landlord covenants and benefit of the tenant covenants - s3 LT(C)A 1995

The outgoing landlord is not automatically released.

Has to follow criteria in ss6 and 8 LT(A)C 1995 to obtain release and the tenant will have a choice of who to pursue.

29
Q

What is an AGA (authorised guarantee agreement)?

A

Agreement between a landlord and outgoing tenant where the outgoing tenant guarantees that the incoming tenant will perform the obligations of the covenants. If the assignee doesn’t perform the landlord can take action against the outgoing tenant who has given the AGA.

An AGA only requires the former tenant to guarantee their immediate assignee.

30
Q

When can a landlord require an AGA?

A

Where the lease contains a covenant against alienation without landlord’s permission.

Reasonable to do so, or in case of a commercial lease it is a condition of landlord giving its consent.

31
Q

When can a former tenant who suffers loss under an AGA recover from the current tenant?

A

On basis of principle in Moule v Garrett.

or on basis of express indemnity.

Note indemnity covenants are not implied into all new leases like old leases.

32
Q

How does s17 LT(C)A 1995 operate in relation to the recovery of rent?

A

Applies to both old and new leases.

Before the landlord can pursue a former tenant they must:

Serve a default notice on the former tenant within 6 calendar months of the fixed charge falling due. If a tenant already owes rent for a year this means the landlord can only recover the rent from once the notice has been served (so 6 months worth of rent)

33
Q

How does s19 LT(C)A 1995 operate in relation to overriding leases?

A

If a former tenant pays sum demanded in accordance with a s17 default notice they will receive an overriding lease from the landlord.

The lease is
- same duration as the original lease less three days
- on same terms as original lease
- granted by landlord to former tenant

The former tenant becomes landlord to defaulting assignee but is obliged to pay rent to landlord and comply with tenant covenants

34
Q

What remedies can a landlord use for non-payment of rent?

A

-debt action
-commercial rent arrears recovery
-forfeiture

35
Q

How does a claim for debt action operate?

A

Landlord can pursue current tenant or former tenant via privity of contract or AGA.

Former tenant must serve default notice under s17.
Landlord prevented by s19 lA 1980 from bringing a claim after 6 years from the date the arrears were due.

Does not bring the lease to an end.

36
Q

How does CRAR operate?

A

Landlord enters property ceases goods and can sell them.

No court order needed but the following procedure must be followed:
Applies to commercial properties only
Can only be used to recover normal rent
Rend due must exceed minimum of 7 days
landlord must give tenant 7 days notice
only enforcement agent can take control of goods.

Doesn’t bring lease to end - acknowledges existence of lease so may effect landlord’s right to forfeit.

37
Q

How does forfeiture for non-payment or rent operate?

A

The right to re-enter.
Can only be exercised against the tenant in possession.

Right of landlord to retake physical possession so terminates the lease.

Right must be expressly reserved in the lease - in the forfeiture clause.

Landlord must make formal demand for rent due by presenting themselves at the premises between sunrise and sunset.

They may peacefully re-enter or sue and obtain possession order in courts.

Note s6 CLA 1977 makes it a criminal offence to repossess any premises using force.

If used as a dwelling occupier continues to live there landlord must obtain a court order.

38
Q

How can a landlord waive the right to forfeit?

A

If they are deemed to have done so by their conduct.

Implied if they do an unequivocal act showing recognition of the continued existence of the lease and in full knowledge of the facts

39
Q

What relief is available to a tenant against forfeiture?

A

If relief is granted tenant can take back possession.

If landlord sues for possession and tenant pays all arrears of rent and costs before trial court must grant relief.

Tenant can apply to court for relief within 6 months - relief at discretion of court.

Non-residential lease by re-entry w/o court proceedings 6 month time limit doesn’t apply and court can exercise inherent equitable jurisdiction to grant relief.

40
Q

What remedies are available for breaches other than payment of rent?

A

Damages
Specific performance
Forfeiture
Self-help remedy

41
Q

How are damages applied?

A

Doesn’t bring the lease to an end.
Ordinary principles of contractual damages apply.

Can be claimed against former tenant (liable via AGA or privity of contract) or tenant in possession.

Where the lease has 3 or more years to go landlord must first serve a s146 LPA notice.
Tenant has 28 days to serve counter notice - if served landlord cannot take further notice w/o court.

42
Q

How does specific performance operate?

A

Order to do something. rarely used as damages will be sufficient.

43
Q

How does forfeiture for breach of covenant (other than non-payment of rent) operate?

A

The right must be expressly reserved in the lease. If the landlord waives then it loses the right to forfeit.

Can forfeit by peaceful re-entry or court order.

If dwelling house court order required.
Brings the lease to and end - notice must be served.

If the tenant remedies the breach within the time specified there can be no forfeiture

44
Q

How does a self help remedy operate?

A

If the lease contains a provision that allows the landlord to:

enter and inspect the property
give the tenant notice that repair is required
if tenant doesn’t complete work landlord can enter property and do work
landlord can recover cost of work as debt due from tenant

45
Q

What remedies are available to a tenant for a breach of a landlord covenant?

A

Specific performance
damages
self-help

46
Q

How can a lease be brought to an end?

A

Effluxion of time - when the term comes to an end

notice to quit - general rule one full period required
break clause

surrender - landlord and tenant mutually agree

Disclaimer - on bankruptcy or liquidation of tenant

Frustration

Repudiatory breach
merger

Forfeiture

SQE 1 - Land Law (4 decks)

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