Leases Flashcards
What is a lease?
A term of years absolute/ or a legal lease is a legal estate for a fixed period of time.
s205(1) LPA 1925 - any period of time can constitute a lease
Essential characteristics of a lease?
Street v Mountford:
- ) Exclusive possession
- ) For a determinate period
- ) For rent or other consideration
- ) For a term less than the grantor
What is a license?
- Merely a personal right to occupy a piece of land
- Not a right in rem and terminated very easily
1.) Exclusive possession
- ## The right to use land to the exclusion of all others including the landlord although may reserve the right to enter on certain occasions
2.) Determinate period
- Must be a certain beginning and a certain end
- Land may be held on a periodic tenancy
Lace v Chantler
Lease was for the duration of the war, so, therefore, had no definitive endpoint and was not for a determinate period
3.) Payment of a rent
Street v Mountford:
“exclusive possession for a term at a rent”
HOWEVER
Ashburn Anstalt v Arnold:
“…rent is not necessary for the creation of a tenancy. That conclusion involves no departure from Lord Templeman’s proposition…” - rent can be indicative but not required
4.) Term less than that of the grantor
Cannot be greater than the time the grantor is holding it for.
Types of leases and tenancies:
- ) Fixed term leases:
- Fixed period of time and created expressly - ) Periodic tenancies:
- Arise expressly or by operation of law
- Capable of lasting indefinitely (until terminated by notice) - ) Tenancies at will
- Cannot be a legal estate and may be ended without notice - ) Tenancies at sufferance
- Arise only by operation of law - ) Tenancies by estoppel
- ) Perpetually renewable leases
- Allows tenant to renew on expiry
- Provided intention is to create a perpetually renewable lease
Creation of a legal lease more than 7 years in duration:
-Grant by deed then registration of leasehold title
-s52(1) LPA 1925: by deed
s27(2) LRA 2002: disposition completed by registration
s4(1)(c)(i) LRA 2002: more than seven years
Creation of a legal lease more than 3 years in duration:
-Grant by deed
s52(1) LPA 1925: void unless made by deed
Creation of a legal lease less than 3 years in duration:
-Orally or in written
s54(2) LPA: must take effect in possession, at best rent reasonably obtainable and no premium is charged
When does an equitable lease arise?
- ) Defective grant or transfer
- ) Failure to apply for registration
- ) Grant of lease by holder of equitable estate
- ) Contract to create or transfer a lease -
- Walsh v Lonsdale
Assignment of leases and tenancies
- Legal assignment of a lease must be by deed
- ALWAYS even if less than three years
- defective assignment may take effect in equity
Walsh v Lonsdale
Facts: - 7 year lease over a mill, with a clause allowing rent to be paid upfront
- Lease not granted by deed
- L demanded a years rent, which was not paid so they seized the property
L.P: Doctrine created: Equity will regard as done that which ought to be done
Street v Mountford
Facts: - D granted C right to occupy rooms but expressed it was only a license
Judgment: Court held it was a lease
L.P: -Lord Templeman: “The grant of land for a term at a rent with exclusive possession”
“If the agreement satisfied all the requirements of a tenancy then the agreement produced a tenancy”
-Quote about fork and not meaning to make one
A.G Securities v Vaughan
Facts: - D had a long lease over a building and granted different licenses to different individuals under independent agreements
-Licensees tried to claim collective lease therefore being protected by statute
Judgment: could not claim
L.P: A shifting population could not be joint tenants or a lease and therefore aren’t entitled to protection
Antoniades v Villers
Facts: -Unmarried couple made to sign seperate agreements described as licenses and a clause stating the owner reserved the right to occupy the flat
Judgment: Considered to be tenants absolute in joint possession
L.P: -Cannot contract out of the Rents Act else it would be pointless
What is a covenant?
- A term of the contract concerning the rights and obligations of the parties to the contract
- relate to the use and enjoyment of the land
- may be express or implied
Express covenants of the tenant:
1.) To pay rent
2.) To insure
3.) To use the premises only for the stated purposes
4.) To repair
5.) Not to be a nuisance or annoyance to neighbours
6.) Not to assign or sublet:
-Absolute or qualified
Absolute: Landlord can be as unreasonable as they want
Qualified: Cant be unreasonably withheld
Implied covenants of the tenant:
If lease is silent, obligations on the tenant may be implied
- ) To pay rent
- ) To pay rates and taxes
- ) Not to commit waste (voluntary or permissive)
- ) To use the property in a tenant like manner
- ) To allow the landlord to enter
Express covenants:
- ) To allow quiet enjoyment:
- doesn’t necessarily mean noise
- only covers substantial interference - Southwark LBC v Mills
- applies to acts done by landlords - Kenny v Preen: and acts done by people deriving title from the landlord - ) To grant an option to renew to the tenant
- ) To sell the reversion (option to purchase)
- ) Not derogate from the grant
Implied covenants of the landlord
- ) Quiet enjoyment
- ) Not to derogate from the grant
- ) To repair/ ensure fir for human habitation
Liverpool v Irwin
Landlord may have a duty to maintain the common parts of the premises
s8 Landlord and Tenant Act
-To keep premises fit for human habitation where house is let at a low rent
Remedies for breach of repair covenant by landlord
- Damages
- Order for specific performance
- Common law right to recoup reasonable costs from future rent
Liability of original tenant and landlord before 1/1/96
Both governed by privity of contract so remain liable to each other
Liability of Original Tenant before 1/1/96
Privity of contract still applies except in: -Excluded in lease -Perpetually renewable leases -For increased rent -On re-grant Indemnity can be express/implied
Liability of Original Landlord before 1/1/96
Privity of contact still applies except if:
-Excluded in the lease
Swift Investments v Combined English Stores
Touching and concerning the land:
- ) Does covenant benefit any owner of estate? (not just original tenant)
- ) Does it affect the nature, quality mode of user or value of land?
- ) Is the covenant expressed to be personal?
Position of assignee before 1/1/96 - Legal
Does benefit and burden pass?
- ) Privity of estate
- ) Must touch and concern the land
Position of assignee before 1/1/96 -Equitable
Does benefit and burden pass?
No privity of estate
Can pass benefit but not burden
Position of new landlord before 1/1/96
s141 LPA - Passes benefit (right to sue)
s142 LPA - Passes burden (obligations to perform)
Position of subtenant before 1/1/96
- No privity of estate
- No privity of contract
What governs most of the positions now?
Landlord and Tenant (covenants) Act 1995
Liability of original tenant after1/1/96
s5
- Released
- Can be asked to guarantee the nest one by authorised Guarantee Agreement
Liability of original landlord after1/1/96
s6,7 and 8
- Remains but only to current tenant
- Can ask for release
Position of assignee after1/1/96
s3(2)
-Benefits and burdens pass to the assignee
Position of New Landlord after1/1/96
s3(3)
- Benefits and burdens pass to new landlord
Position of sub-tenant after1/1/96
s3(5)
-Landlord can enforce a restrictive covenant against the sub-tenant
If tenant has breached by non-payment of rent?
If property is residential: No right to forfeit - Protection from Eviction Act 1977
If not: does the lease dispense with the demand?
or does s210 Common Law Procedure Act apply?
s210 Common Law Procedure Act
- Rent is at least 6 months in arrears
- Insufficient goods to levy distress
If s210 Common Law Procedure Act does apply or the lease dispenses with the demand?
If yes: Peaceable re-entry or application to court for possession order + LEASE ENDS
If no: Serve formal demand per Duppa v Mayo then do above
If tenant has breached other covenant?
Serve 146 notice:
- Specify the breach
- Require remedy
- Require compensation
Did the tenant remedy the breach?
No: Peaceable re-entry or application to court for possession + LEASE ENDS
Yes: Lease continues
Hammersmith LBC v Monk
A periodic tenancy will continue until either party serves notice to quit
Hoffman v Fineberg
“No breach can ever be remedied because there will never be a point in time where the covenant wasn’t breached” - 146 notice now contravenes this
Perera v Vandiya
Authority for allowing quiet enjoyment
Moule v Garrett
Authority for claiming against the most recent assignee
Spencers case
Rule for touching and concerning the land originated in this case but then built on by Swift Investments
Argyll stores
Keep open covenants are NOT allowed -> cannot force a business to remain open
Hill v Barclay
Old general rule that no specific order for repair but has since been overruled
Fuller v Happy Shopper Markets
Warned landlords about levying distress as it interferes with art 8 of human rights
Matthews v Smallwood
Landlord must know that a breach has occurred in order to waive it
Thomas v Ken Thomas
Landlord can reject the payment if it’s just been paid into their bank account
Duncliffe v Caefelin
Right to take action passes to the new landlord with assignment of reversion
Smallwood v Shepards
Authority that a legal lease does not have to be for at least a year:
Legal lease can be for three consecutive bank holidays
Seagull v Thosby
Where a landlord accepts rent, knowing a breach has occurred he forfeits his right to a remedy
Remedy of distress:
Abolished by The Tribunals, Courts and Enforcement Act 2007
Expert Clothing Service v Hillgate House
Important question of whether the harm to the landlord could be remedied
Billson
Can apply for relief at any point, even after re-entry
Aslan v Murphy
Landlord can keep a key for emergencies/ repairs and not negate exclusive possession
