Leases Flashcards by Hannah Moses

Formalities to create a lease

If 3 years or less then parol lease and no formalities

If more than 3 years need a deed for a legal lease

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Can a lease be created orally

Only a parol lease

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When can a lease be equitable due to failure of formalities

Contract to transfer land

Attempt to create a deed but not valid so find a contract

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Essential requirements of a lease

Specific duration
Exclusive possession
Correct formalities

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Is rent necessary to create a lease

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Can a license be assigned

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Can you create a lease for life

No this would create a lease for 90 years ending on death of tenant

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What is a break clause

A fixed term tenancy with a contractual right to bring it to an end

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When does T have exclusive possession

When in general control even if contract tries to exclude it

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Is a lease created if employer lets employee live with them

No just a licence

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Can a legal periodic lease be inferred

Yes

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Is a parol lease legal or equitable

Legal

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Implied covenants

Quiet enjoyment and fitness of property

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What is quiet enjoyment

Ts possession of land will not be substantially interfered with by acts of L

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Can L interfere with Ts peace or comfort to encourage them to leave

No this is an offence

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Ls obligations re dwelling houses

Keep on repair structure, exterior and installations of water gas electric sanitation and heating

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Alienation meaning

Disposal of existing leasehold

Can T assign lease

Absolute prohibition - no
Qualified prohibition - need consent
Fully qualified prohibition - need consent which cannot be unreasonably withheld

Can there ever be a qualified covenant against assignment, under letting, charging, or parting with possession

No because LTA turns it into a fully qualified covenant

Enforcement of covenants in leases before 1Jan 1996

Contract may bind successors. If not:
Old T: privity of contract. Remains liable for burden until end of lease even after asignment. Gives up benefit
New T- privity of estate. Liable for covenants that touch and concern the land.
New L: liable for covenants that touch and concern the land
L can pursue old T, new T or both
Old T can sue new T under common law, indemnity or implied indemnity

Enforcing covenants under leases created post 1 Jan 1996

New T and Old T liable for benefit and burden (unless personal) only while lease is vested in them and then automatically released. L can only pursue current T
New L subject to benefit and burden (unless personal)while holding freehold and then must apply to be released or can put in contract that no longer liable when not holding freehold. Otherwise T can pursue old L and new L or both

What is an authorised guarantee agreement

Agreement between L and outgoing T than L can hold Outgoing T liable for breach of covenant by new T

What remedy can L have if new T is bankrupt and disclaims lease

Can require old T to enter into lease again

When can L have an AGA

Lease covenant against alienation and reasonable (or if commercial it was a condition of consent)

How can a fOrmer T recover for loss suffered under AGA

Recover from current T or indemnity (indemnity only implied into old leases)

Can L get a guarantor as well as an AGA

Yes

S17 LTA

L can sue original T for fixed charge not paid by current T. Serve notice within 6 months of it falling due

If old T pays under s17 LTA what can they have in return

An overriding lease

According to s18 LTA when does s17 apply

When new T agrees to variation of terms of lease not originally contemplated

S19 LTA terms of overriding lease

Same terms and duration plus 3 days | Must pay rent and comply with covenants

Ways to determine a lease

Surrender - mutually agree to end by deed (doesn’t end sub-t) Disclaim- bankruptcy or liquidation (doesn’t end sub-t) Repuditory breach Frustration Merge - L and T are same person

Ts remedies for breach of L covenant

Damages - contractual principles Self help- cannot with hold rent but can notify L and if fail to repair then do it self and recover cost (set off at common law) Set off at equity- T can have unliquidated claim set off against liability for rent if they withhold rent and L sues. Two claims must be sufficiently direct

Ls remedies for non-payment of rent

Debt action Commercial rent arrears recovery - take possessions and sell. Forfeit

When at commercial rent arrears recovery be used

Commercial property Rent only (not insurance etc) Rent due must exceed 7 days L must give T min of 7 days notice of intention from authorised enforcement agent

When can T apply for relief from forfeiture

Pays everything before trial Courts discretion within 6 months of court order Courts discretion for Non residential lease within any period of time if no court order was obtained

Can L loose right to forfeit

If they waive breach expressly or impliedly by recognising continuation of lease in full knowledge of breach

How to forfeit

Make formal rent demand at premises in daylight unless lease removes this requirement

Ls remedies for breach of other covenants (not rent)

Damages Specific performance Self help - if lease allows L to enter Forfeiture - other than for nonpayment of rent it must be allowed by lease

Notice required for L to seek damages from T for breach of covenant other than rent

If lease have 3 or more years unexpired serve s146 notice on T explaining they can serve counter notice claiming benefit of 1938 Act Within 28 days. If they do no further action without leave of court

How to forfeit - breach of covenant other than rent

Serve notice specifying breach and deadline to remedy

Does forfeiture of head lease end sub lease

Yes but sub T can apply to court to have headlease vested in them on terms court thinks fit

Can you remedy breach of covenant against alienation