Leases Flashcards
What are the essential requirements of a lease?
Certainty of term.
Exclusive possession.
Compliance with the correct formalities to create a lease.
Where two or more people share premises can they still have a lease?
If the occupiers have the right to exclude others, including the landowner they prima facie have a lease.
Joint tenancy vs. several individual leases.
What are the requirements of a joint tenancy?
All co-owners constitute one single entity.
4 unities must be present:
1. Unity of possession
2. Unity of interest
3. Unity of time
4. Unity of title
What tenancies do security of tenure provisions apply to?
Tenancies occupied by the tenant for the purposes of a business.
Fixed term tenancies and periodic tenancies CAN benefit from security of tenure.
Licenses and tenancies at will CAN’T benefit from security of tenure.
Tenancy must be over 6 months to qualify.
What tenancies are excluded from the LTA 1954?
Agricultural tenancies.
Mining leases.
Service tenancies e.g. a security guard’s flat, a shopping centre employs a maintenance person and lets them a room to store tools/materials.
Fixed term tenancies of 6 months or less.
Which leases CAN be contracted out?
Only fixed term leases can be contracted out.
Requirements:
A warning notice, a declarative or statutory declaration, reference to contracting out procedure in the lease and a warning notice.
What is an absolute covenant?
The tenant is completely prohibited from doing something.
What is a fully qualified covenant?
‘The tenant shall not do X within the Landlord’s consent, such consent not to be unreasonably withheld or delayed’
The landlord must be reasonable if it is going to withhold consent.
What is a qualified covenant?
‘The tenant shall not do X without the Landlord’s consent’
The tenant can ask the landlord for consent but the landlord doesn’t have to give it.
What is the effect of a qualified alteration covenant in a lease?
Where a qualified alteration covenant is in the lease, it will be converted into a fully qualified one. The landlord’s consent cannot be unreasonably withheld.
What is the effect of a qualified user covenant?
S19(3) LTA applies to qualified user covenants to prevent a landlord demanding payment for granting its consent.
Exception - if the change of use involves a structural change, the landlord can increase the rent/charge the tenant a lump sum in return for the consent.
What remedies does the landlord have for breach of a rent covenant?
Action for debt - the tenant can be sued BUT the landlord can only recover up to 6 years’ arrears.
Forfeiture - allows the landlord to terminate the lease and take control of the leasehold estate.
CRAR - landlord must serve an enforcement notice on the tenant giving 7 clear days’ notice it will seize goods, must be a min. of 7 days’ rent arrears, COMMERCIAL
What are some examples of a continuing breach?
Failure to repair.
Waiver of forfeiture only lasts until the next day the breach continues.
What are some examples of a non-continuing breach?
Sub-letting without consent;
Non-payment of rent;
Waiver is permanent.
Forfeiture - breach of a rent covenant. Key steps:
- There must be a breach of covenant
- There must be a forfeiture clause in the lease.
- The landlord must not have waived the right to forfeit: continuing vs. Non-continuing breach.
Breach of rent covenant:
- The landlord must have served a demand for payment, or the lease must waive this right.
- The landlord can then forfeit the lease for breach of covenant but peaceable re-entry or court order. If residential, landlord must obtain court order.
- The tenant/sub-tenant can apply for relief from forfeiture.
