Leases Flashcards
What rights does a lease give tenant?
Exclusive use and enjoyment, enforceable against world (inc landlord)
3 main types of leases
1) residential leases
2) Agricultural leases
3) Other types of leases( mainly industrial and commercial)
When must leases be in writing?
When in excess of a year
Requirements of Writing (S) Act 1995 s1(7)
Tenants can only acquire real rights from a lease is certain requirements met Leases Act 1449
1) be in writing
2) Subject of lease must be heritable
3) Must be specific continuing rent
4) Must have definite is (end date) where not present court will stipulate it being 1 year
5) Tenant must occupy premises
Max length of a lease?
175 years
The 1449 requirements are for requirement of real rights under lease not for validity of lease
Validity of lease
- consensus
- heritage identified
- set time period
- payment agreed
What is defined as a long lease?
Excess of twenty years
How can you acquire real right under long lease?
Only through registration
Landlords obligations under residential lease?
1) give tenant possession
2) ensure property in habitable condition but duty to repair does not repair damage by third party or damnum fatale
3) note commercial tenants usually have clause in contract to impose obligation to insure and repair on tenant
Tenants obligation
- to take and maintain possession( Graham + Black v Stevenson
- take reasonable care of premises and make good any damages caused by hid own negligence
- to pleasing the subjects
- pay rent sure
Common law: does there need to be permission from landlord for assignation or subletting?
Not unless deletes personaein lease
Common practice for assignation and subletting?
Specifically excluded in contract of lease.
Where landlords consent need no need for reasons to withhold consent, just be cause they want to.
Need to look for clause specifically saying landlord cannott withold consent unreasonably
Onus on tenant to prove withheld unreasonably.
Landlords Remedies are:
- Recission
- interdict/implement
- Irritancy
- Landlords Hypothetic
Recission?
If tenant has materially breaches lease then landlord can terminate the lease by recision only if reasonable landlord would so so considering all circumstances s5 Law Reform Misc Prov) (S) Act 1985
Interdict?
- prevent them from leaving premises (Retail Parks Investments Ltd v Our Price Music Ltd.
Interdict is purely negative order, cannot make the defender do anything
Specific implement?
- enforce stay open clauses More likely to grant it if stay one order is v specific
Irritancy ?
Brings lease to an end.
Legal irritancy
2 years non payment of rent
Conventional irritancy
Specifically provided for in the lease
There is no right for the tenant to remedy the breach
Courts can refuse a landlord’s action for decree of decelerator of irritancy if the landlord is acting oppressively.
2 separate sets of statutory restrictions for 2 types of irritancy
Monetary irritancy
Non monetary irritancy
What must a landlord who wishes to irritate the lease on monetary terms do?
Give tenant 14 days notice that payment of arrears is needed and warn of the possibility of termination of the lease
If the rent isn’t repaid in the time specified by the landlord?
Then no defence to the ensuing action for decree of declarator of irritancy
Case that shows theres no defence to monetary irritancy?
CIN Properties v Dollar Land (cUMBERLAND) lTD
Grounds for non monetary irritancy?
Only if a fair, reasonable landlord would rely on the breach to terminate the lease.
Is the test concerned with the landlord or the effects on the tenant?
Only on the actions of the landlord
Landlord’s Hypothec is applicable when?
Insolvency proceddings when their is ranking in gaining back debts.
What does it cover?
Rent owed and due
What property is excluded?
Property belonging to third parties
Other remedies available to landlords?
Normal action for payment, claim for damages.
Tenants remedies?
- Recisission
- Implement/interdict
- Retention/ Abatement of rent
- Damages
Tenants recision?
If landlord commits material breach
Tenants implement/ interdict?
Might be appropriate for specific terms of the lease
Retention of rent?
May respond to material breach, such as failure to carry out repair by retaining rent due. Once remedied rent should be paid in full.
When may full rent not have to be repaid?
If tenant can argue abatement of rent, court may agree where premises were essentially uninhabitable during the period of the landlord’s breach.
Damages for the tenant?
Where tenant has suffered loss because of landlords actions or breaches
Termination of lease?
- tacit relocation
- breaks
- irritancy
- destruction of the subjects of let
- removing and ejection
Tacit relocation?
If not brought to end by notice of termination then tacit relocation continues lease for 1 year unless express consideration not to. Will continue on same terms.
Breaks?
Lease may provide for breaks. At these points either party can bring lease to an end.
Are they still entitled to breaks if they have breached other elements of the lease?
Yes
Destruction of the subjects of let?
Lease brought to end by way of rei interitus
Total destruction. Or partial destruction that has the effect of making premise unusable for purposes of lease
Removing or ejecting?
Landlord can only remove by way of court action.
Must first serve notice in correct statutory form if not then removing action is incompetent.
When might action of removal or ejection be needed?
often after termination of lease such as after declarator of irritancy
All landlords much insure that property is air wind and water tight
Macrocell v City of Glasgow District Council
Private sector landlords responsible for what regarding repairs?
‘repaairening standard’
Two components of the ‘repairing standard’
1) meet this standard at start of tenancy
2) Continue to meet standard through tenancy
Repairing standard has a number of components
- wind _ watertight
- suitable for human habitation
- structure and exterior must be in reasonable state of repair
- water, gas and electric city must be working
- fixtures, fittings and appliances must be working
- satisfactory smoke detectors and fire alarms in house
If landlord doesn’t do these things?
Tenant can apply to private renting housing panel to make sure obligations are met and may make rent relief order
Public sector landlords obligations are similar:
- wind and watertight
- fit for human habitation
- in same condition throughout tenancy
- duty to carry out work triggered by notice to the landlord
additional public sector element
tenant has limited power to have repairs carried out when landlord fails to and then have costs recompensed.
Really bad state of premises may infringe…
Art 8 ECHR rights
If local council does or should know of extreme infringement then…
Duty to bring infringement to an end
What are secured tenancies?
All social tenants : local authorories and registered social landlords and Scottish Water
Must secured tenancies be written?
Yes
