Leases Flashcards
What is a lease?
- estate in land
- Proprietary right; enforceable against third parties
- contractual right
- between landlord and tenant
- landlord owns the freehold reversion
- landlord receives rent from the tenant
- landlord’s ownership subject to tenant’s rights
What is the difference between a lease and a licence?
licence -> mere contract; allows temporary use of the land for the duration of the contract; only a personal interest
lease -> much stronger than a licence; proprietary right; estate in land
What are the 3 main benefits of a lease over a licence?
- binds third parties
- lease holder has security of tenure; entitled to occupy land for full duration of the lease and possibly after the lease even ends
(note: comparatively, licence can be revoked at any time)
- exclusive possession and overall control of the land; enforceable against everyone including the landlord; able to sue for trespass and nusiance on land
What 3 elements are essential characteristics of a lease?
- certainty of term
- defined duration -> e.g. fixed term such as 10 years or periodic term (rolling basis with no specified end date without notice)
- exclusive possession
- landlord must request tenant’s consent to enter property for a specific reason.
- intention to create legal relations can also indicate a lease rather than a licence
- rent not necessary
- not necessary unless there is an implied periodic tenancy
- but if no rent paid -> less likely for there to be intention to create legal relations
What are the formality requirements for a lease: exceeding 7 years
deed + registration
What are the formality requirements for a lease: 3-7 years
deed
no registration -> operates as an overriding interest in land
What are the formality requirements for a lease: 0-3 years
no formalities -> will operate as an overriding interest; legal rights binds the world
can be made orally or in writing, provided that tenant is in immediate possession and pays
if implied periodic tenancy -> rent must be paid
Is there a rent requirement for an implied periodic tenancy?
yes
What are the formality requirements for: an equitable lease?
satisfy land contract requirements (written contract)
registration of the contract to protect it, unless it is an overriding interest with actual occupation for registered land.
What happens if a leal lease with a fixed term of more than 3 years fails? (e.g. no deed)
becomes an equitable lease (provided that it complies with land contract requirements)
Needs registering via notice
What happens if a leal lease with a fixed term of more than 3 years fails (e.g. no deed) and then fails as an equitable lease?
tenant has moved in and is paying rent -> implied periodic tenancy recognised
no formality requirements
Covenants contain the promises made between a tenant and landlord. What is the difference between an implied vs express covenant?
Express -> agreed between parties and documented in the lease
Implied -> by statute or by courts - implied if the parties leave out certain express covenants in their lease or express covenants need supplementing
Can implied covenants ever override express ones?
yes
What is a covenant?
Promise in a deed
Enforceable without the need for consideration
What is assignment?
where lease is passed on to a third party
What is reversion?
Landlord’s interest in the property -> once lease is over, property ‘reverts’ to landlord
What are 4 express covenants made by a landlord ?
- Quiet enjoyment
- to insure
- to repair
- to enforce covenants of other leases in the same building
What are 5 express covenants made by a coventantee ?
- to pay rent
- to repair
- alterations
- use - landlord will impose some restrictions on the use of the property
- alientation - how the tenant can assign/ sub-let property
If a lease allows for assignment/ subletting with the landlord’s consent:
- can this be withheld unreasonably?
- Is there a required timeline for response?
- if consent is refused, does the landlord need to justify this?
- no, refusal of consent must be reasonable
- response within a reasonable time
- reason for refusing consent must be done in writing
If a lease is silent as to whether landlord consent is needed for assignment/ subletting can L’s consent can this be withheld unreasonably?
yes - allowed to have an absolute prohibition on assignment or subletting in the lease
only where alientation is allowed with consent that this needs to be reasonable
If a landlord refused to give consent for assignment under a lease or imposes conditions - does this need to be reasonable for a commercial lease?
no
What are 3 implied covenants made by a landlord ?
- quiet enjoyment
2.not to frustrate/ interfere with the purpose of the lease
- repair for residential tenancies of less than years
What are 3 implied covenants made by a covenatnee ?
- pay rent
- pay rates/ taxes
- use the property in a tenant- like manner;
- not to commit waste - cannot alter the state of the land (e.g. knocking down a wall)
- to allow landlord to enter and view
What can the landlord do (remedies) if there is a breach of: non-payment of rent
- sue tenant - but can only recover 6 year’s worth of rent
- distress and commercial arrears recovery
T must be in arrears for at least 7 days.
Only available for commercial tenants.
L sends and enforcement notice giving T 7 clear day’s notice that he wills seize the goods.
T can apply to have notice extended or set aside.
- Forfeiture - early termination of a lease
What can the landlord do (remedies) if there is a breach of: covenants other than non-payment of rent
- injunction
- specific performance
- damages
- forfeityre
What can the lease-holder do (remedies) if there is a breach of covenants ?
- injunction
- specific performance
- damages
- repudiation
- set-off
what is a ‘special’ s146 notice used for
breach of repair covenant
if a breach is not remediable, what are the requirements for L?
serve s146 notice
T has 14 days notice before forfeitingC
Can T apply for relief from the serivice of a s146 notice?
yes
