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Land Law > Leases > Flashcards

Leases Flashcards

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1
Q

Is a lease capable of being legal?

A

Yes, s 1(1)(b) - term of years absolute in possession

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2
Q

What are the formalities needed for a legal lease?

A

Lease for more than 3 years : deed is required

Lease for less: no formalities needed. Parol leases.

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3
Q

When will equity intervene with a lease?

A

Where there is a contract to create or transfer

Where there is an attempt to make a deed, but it is not valid

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4
Q

How can a equitable lease be made by a contract?

A

Valid contract, s 2 LPMPA

Must be a contract
Must comply with s 2
Must have clean hands

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5
Q

What is an estate contract?

A

A contract to transfer existing legal estate. Equitable right

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6
Q

What are the essential characteristics of a lease?

A

3 essential requirements:

Must be for a duration permitted for a leasehold estate

Must be given exclusive possession

Grant must have correct formalities

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7
Q

What happens if one or more of the essential characteristics of a leaes are missing?

A

Then there will be a licence, not a lease.

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8
Q

What is the difference between a lease and a licence

A

Lease:
Creates proprietary right in land that can bind purchaser. Leaes can be assigned to new tenant adn leaes continues, occupier with benefit has statutory protections

Licence:
Creates only a personal right that doesnt bind buyer. Cannot be assigned, licensees in occupation do not benefit from statutory protection.

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9
Q

What is the permitted duration for a lease?

A

Must have a definable end. This is a fixed ascertianable period.

Can be fixed pr periodic.

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10
Q

What is exclusive possession?

A

A grant of anything less than exclusive possession will not create a leasehold estate, will create a licence.

Exclusive possession:
Tenant may exclude al from he land,
Exclusive possession extends beyond mere occupation.

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11
Q

What are examples of licences?

A

Landowner retains control
Service occupancies
Flat sharing agreements
If no payment of rent (therefore informal)

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12
Q

What s the relationship between landlord and tenant in a leases?

A

Lease is a contract which creates an estate in land. There is an agreement between them.

Ther are leases covenants that are agreed through negotiation between Landlrod and tenant.

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13
Q

What are examples of tenant covenants?

A

Rent
Contribution to insurance
Repair
Alterations
Alienation

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14
Q

What are examples of landlords covenants?

A

Quiet enjoyment (means tenants lawful possession will not be substantially interfered with by acts of landlord)

Insurance

Obligations in respect of fitness of property (keep in repair the structure and exterior of house)

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15
Q

What is an assignment?

A

This is when the tenant passes their interest under the lease to anew tenant, and steps out of the picture.

No new lease is created, the lease jst changes hands.

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16
Q

What is alienation?

A

Menas the disposal of the existing and remaining leasehold estate by the tenant

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17
Q

What is a sublease?

A

A lesser estate, which is CARVED out of the superior estate. A new leaes is created, must have a shorter duration that the headlease

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18
Q

What are examples of alienation?

A

Assignment
Sub-leaes
Mortgage/charge
Parting with possession

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19
Q

What are the 4 positions of alienation, depending on the alienation covenant nature?

A

Open contract position : lease does not contain a covenant against alienation, tenant has complete freedom

Absolute prohibition - not alowed under any circumstnace

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

Fully qualified covenant - consent cannot be unreasonably withheld

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20
Q

What does s 19 LTA do to alienation covenants?

A

It translates any qualified covenant into a fully qualified covenant, therefore cannot unreasonably withhold consent.

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21
Q

What must the landlord do with a fully qualified covenant?

A

Give consent, unless reasonably not to

To give written notice of their decision, including any conditions

Where consent is withheld, written reasons for refusal.

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22
Q

What are the 2 sets of rules governing how covenants in leases are enforced?

A

Leases created befoer 1 jan 196 (old leases)

Leases created after 1 jan 1996 (new leases)

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23
Q

What is the liability of the original tenant for old leases?

A

Relationship of privity of contract between original landlrod and tenant.

Parties may have covenanted on behalf of themselves and successors in title.

Tenant remains subject to burden of covenants, but ceases to be entitled to benefit of covenants.

24
Q

What is the liability of an assignee in an old lease?

A

When original T assigns to T2, there is a relationship of privity of estate between landlord and t2.

This always exists between landlord and current tenant.

T2 is liable for breaches of all real covenants - touch adn concern the land, both positive and restrictive.

Purely personal obligation is NOT a real covenant.

25
Q

What happens if T2 fails to comply with an obligation under an old lease?

A

If T2 defaults, the landlord can pursue the original tenant through contract, T2 through privity of estate, or both of them.

26
Q

With old leases, is there recovery between tenants?

A

If the original tenant is sued as a result of a rbeach which they did not commit, they can:

Common law (against tenant in possession at the time of breach (current tenant)

Indemnity covenant (against a person to whom they assigned the lease)

In absence of express indemnity covenant, this is implied into any assignment.

27
Q

What happens to old leases on the sale of the reversion?

A

The benefits and burdens of the landlord covenants which touch and concern the land are TRANSMITTED to the new landlord. This enables the new landlrod to pursue either original or current tenant.

28
Q

What is the position of the tenant in a new lease?

A

Tenant is bond by the covenants only whilst the leaes VESTED IN THEM>

Upon assignment, al landlord and tenant covenants pass to the assignee, unless they are expressed to be personal.

Original tenant is automatically released from any liability under the lease and cease to be bound.

29
Q

What is the position of the landlord in new leases?

A

New landlord takes burden of the landlord covenants and acquire benefit of tenant covenants, provided they are not personal.

Outgoing landlord is not automaticlaly released. Outgoing landlrod has to follow criteria in s 6 and 8 of LT(C)A.

If they do not do this, the tenant has a choice who to pursue.

30
Q

What is an AGA?

A

Landlord can improve their position, by asking outgoing tenant to enter into an AGA>

It is an agreement between landlord and outgoing tenant, under which the outgoing tenant guarantees that the assignee wil perform the lease covenants.

The former tenant gives the AGA to the landlrod, which means that if the assignee does not comply with lease covenants, the landlord can take action against the former.

31
Q

What are the terms of an AGA?

A

Primary obligation. Means the landord may pursue the former tenant without taking any action against assignee.

32
Q

When can a landlord require an AGA?

A

Can only seek an AGA where:

  • the leaes contains a covenant against alienation without the landlord consent, and,
  • is either reasonable to do so, or it is a condition of the landlord giving its consent.
33
Q

Can tenants recover between other tenants with an AGA?

A

A former tenant who suffers loss due to liability under an AGA as a consequence of default of assignee, may recover from the assignee.

34
Q

What do s 17, 18 and 19 do to both old and new leases?

A

To improve the position of a former tenant who remains liable ether through privity of contract in old leaes, or terms of AGA if new leaes.

35
Q

What does s 17 of LT(C)A do?

A

Relates to recover of fixed chagre from former tenant.

Fixed charge includes rent.

F before landord can pursue a former tenant, they must:

  • serve default notice on former tenant, within 6 calendar months of the fixed charg failing due.
36
Q

What is s 19 of LT(C)A

A

If former tenant pays sum demanded in accordance with s 17, s 19 allows the former tenant to request an overriding lease from the landlord

  • same duration as original MINUS 3 days
  • same terms as original
  • granted by landlrod to former tenant.
37
Q

What are teh 3 landlord remedies for non-payment of rent?

A

Debt actin

CRAR

Forfeiture

38
Q

What is debt action for non-payment of rent?

A

Not a damage claim, does not bring lease to an end.

Can pursue currnet or former if privity of contract or AGA).

39
Q

What is the statutory limit fo debt action for non-ayment of rent?

A

6 years from date on which arrears became due.

40
Q

What is CRAR

A

commercial rent arrears recovery

Only available for tenants in possession. Consists fo landlord entering premise and seizing tenants goods and selling them.

Applies to only commercial property

Only used to recover normal rent

Rent due must exceed minimum of 7 days rent

Landlrod must give 7 days notice of ther intention

Only an enforcement agent can take control of goods.

Does not bring lease to an end. Could waive the right to forfeit t lease.

41
Q

What is the action of forfeiture for non-payment of rent?

A

Known as right to re-enter
Can only be exercised against tenant in possession
Right for landord to retake physical possession of premises, therefore terminating the lease.

MUST be in the lease reserved. Forfeiture clause.

42
Q

What is a waiver?

A

Once right to forfeit as arisen, landlord may lose the right to forfeit in respect of that breach, if by their conduct they are deemed to have waived it.

Express or implied. Implied if landlord does something to SHOW the continuance of the lease - such as CRAR or demanding future rent etc.

43
Q

What are the 2 methods of forfeiture?

A

Peacefully re-entering the premises

By suing and obtaining possession order inc ours.

44
Q

What relief is available for the tenant during forfeiture?

A

Tenant may apply to court for relief. If granted, then tenant may retake premise on the terms of ORIIGNAL leaes.

Can do this :

  • if landlord sues for possession and tenant pays all arrears of rents before trial
  • if tenant applies to court for relief within 6 months of landlords re-enter
  • if landlord forfeits a non-residential lease by re-entry without court proceedings, 6 month time limit deos NOT apply.
45
Q

What are landlords remedies for breach of other covenants that are not -nonpayment?

A

Damages
Specific performance
Forfeiture
Self-help remedy

46
Q

When can damages be claimed for breach of covenant?

A

Does not bring lease to an end.

Must be fairly and reasonably be considered

Must have been reasonably in contemplation fo both parties at the time they made the contract.

47
Q

Is notice needed for Damages?

A

No, notices are not needed for damages.

Unless disrepair - if it has 3 or more years unexpired, landlord must serve on tenant a s 146 notice, which tenant is entitled to serve a counter ntice claiming benefit.

48
Q

When specific performance be acted upon for breach of covenants in lease?

A

Discretionary remedy against tenant in possession. Does not bring leaes to an end.

Rarely ordered, as damages are usualy enough.

49
Q

When is forfeiture applied for breach of covenants in a lease?

A

Must be expressly reserved int he lease.

Can forfeit by peaceful reentry or a court order for possession.

If wholly or partly dwelling, the notice must be served under s 146.

50
Q

What information must be served under s 146 for forfeiture?

A

Specifying breach
Requiring t to be remedies within reasonable time
Requiring compensation if desired

51
Q

What is the self-help remedy?

A

Enter and inspect prperty
Give tenant notice that repair is required, and a time period to do it
If tenant does not complete work, then landlord can re-enter and do it themselves
Can recover the cost of work as a DEBT.

52
Q

What are the tenants remedies for breach of landlord covenant?

A

Specific performance/injunction

Damages

Self-help

53
Q

How can leases be brought to an end?

A

Effluxion of time (normal end to the lease)
Notice to quit (periodic lease)
Break clause
Surrender
Disclaimer
Frustration
Repudiatory breach
Merger
Forfeiture

54
Q

What is a break clause

A

Wehn landlrod and tenant agree to include a contractual break clause. Can be a fixed date or on a rolling basis.

55
Q

How can a tenant surrender a leaes?

A

Through express deed. Only terminates that leaes, does not terminate any sub-leases.

Land Law (7 decks)

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