Lease termination Flashcards by Hannah Buck

What are the ways in which a lease can come to an end?

Effluxion of time
Break clause
Surrender
Notice to quit
Merger

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What is effluxion of time?

Where fixed term tenancy does not have security of tenure expires at end of contractual term

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What is the consequence if a landlord requires a tenant to vacate after effluxion of time and the tenant refuses?

Landlord can treat them as trespasser

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What is the consequence if a landlord consents to an unprotected tenant remaining in occupation at the end of a term?

Tenant at will

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What is the consequence if a landlord accepts rent when an unprotected tenant remains in occupation at the end of a term?

Tenancy at will may convert into periodic tenancy (and may acquire security of tenure)

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What is the effect if a landlord exercises a break clause in a tenancy that is protected?

Brings contractual term to an end but tenant may still hold over

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Can periodic tenancies be contracted out?

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What is the default notice period for periodic tenancies?

Weekly =
o Residential = 4 weeks
o Other = 1 week
Monthly = 1 month
Quarterly = 1 quarter
Yearly = 6 months

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What is the specific rule on when a period tenancy notice period must expire?

must expire on first or last day of tenancy period.

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What is the effect if a landlord serves a notice to quit in a protected periodic tenancy?

Ends periodic tenancy but tennat may still hold over

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How can a landlord recover possession through notice to quit where a periodic tenancy is protected?

Serve hostile s25 notice

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How must an express surender be made?

By deed

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What is a reverse premium?

Premium paid by tenant to give up leasehold interest

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When is there a surrender by operation of law?

When landlord and tenant act in a qay inconsistent with continuation of tenancy

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Is a surrender effective for protected tenancies?

Yes

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When is there a merger?

Either tenant acquires landlord’s superior interest or a third party acquires both

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What are the landlord’s remedies if it breaches its lease?

damages
action in debt
guarantor
rent deposit
commercial rent arrears recovery
injunction
specific performance

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What is the measure of damages if a tenant breaches its covenants and the landlord brings proceedings in court?

Putting landlord back in position if not for breach

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What is an action in debt for rent arrears limited to?

rent due in 6 years before issue of proceedings

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When may a landlord pursue a former tenant where the current tenant is an assignee?

Old lease or provided AGA

When can commercial rent arrears recovery be used?

Purely commercial premises
Minimum 7 days’ principal rent owed
Lease has not been forfeited

What is the procedure/requirements for CRAR?

enforcement agent appointed (who has required certificate or exempt)
7 clear days’ notice of intention to enter premises
notice details (how to pay, power, contact details of agent)
if notice expires, can enter and take goods
7 clear days’ notice of intention to sell goods

What is forfeiture?

Allows landlord to re-enter premises and take back from tenant

Is forfeiture automatic for legal leases?

No - permitted if lease allows

Is forfeiture automatic for equitable leases?

Right to forfeit for non-payment of rent is implied

When can forfeiture take place?

* Non-payment of rent – as soon as lease allows * Other – L must serve s146 notice (gives T reasonable opportunity to remedy)

How can forfeiture take place for business premises?

- peaceable re-entry - court order for forfeiture

How can forfeiture take place for residential/mixed use premises?

Court order only

Where a Landlord wants to forfeit for non-payment of rent, what must occur?

Formal demand between sunrise and sunset

When will a formal demand for non payment of rent not be needed for forfeiture?

* Lease expressly waives requirement or * At least 6 months rent in arrears and insufficient seizable goods

When will there be an implied waiver of the right to forfeit from the landlord?

- Landlord does unequivocal act recognising continued existence of lease, - with knowledge of breach, and - communicates act to tenant

What is a once and for all breach?

If landlord waives right to forfeit, never able to regain for that breach

What is a continuing breach?

Each day breach continues, landlord regains right to forfeit

What are examples of once and for all breaches?

* Non-payment of rent * Unlawful assignment/underletting * Insolvency event

What are examples of continuing breaches?

* Failure to keep in repair * Breach of user * Failure to comply with insurance obligation

What may a tenant apply for when the forfeiture process is initated?

Relief from forfeiture

What is relief from forfeiture?

Court allows lease to continue

Where a landlord has re-entered under a court order, when can a tenant apply for relief from forfeiture?

Within 6 months of re-entry

What are the exceptional circumstances in which relief from forfeiture may not be awarded?

* Lawfully let to new tenant * Non payment is exceptionally bad

If a Landlord has peaceably re-entered without a court order, under what conditions may the court grant relief from forfeiture?

* Rent and landlord’s costs are paid * Just and equitable

Can anyone other than the tenant apply for relief from forfeiture?

Yes eg mortgagee or undertenant

What are the requirements for forfeiture where there is breach of the repair covenant?

s146 notice including advising on counter notice if applicable

When will the Leasehold Property (Repairs) Act apply for breach of repair covenant?

* Lease term 7 years or more * At least 3 years of term left to run

What is the consequence of the Leasehold Property (Repairs) Act applying for breach of repair covenant?

Tenant has 28 days to serve counter notice Landlord cannot continue without leave from court

What are the requirements for commencing proceedings for damages where there is a breach of the repair covenant?

- serve s146 notice - 28 days for tenant to serve counter notice

What is the measure of damages for breach of a repair covenant?

Loss of value to landlord's reversion

What will commercial leases usually contain given the unsatisfactory nature of forfeiture/damages where there is a breach of the repair covenant?

Self help clause aka Jervis v Harris clause

What does a Jervis v Harris clause allow a landlord to do?

* Enter property * Carry out repairs * Recover cost from Tenant

For breaches other than non-payment of rent or repair covenant, a s46 notice is required to be served allowing reasonable time to remedy the breach. Which breaches may not require reasonable time as they are not capable of remedy?

- underletting/assignment - illegal/immoral use