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Land law (half) > Leases: Remedies and ending a lease > Flashcards

Leases: Remedies and ending a lease Flashcards

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1
Q

What remedies are available to the landlord when there is a breach of rent covenant?

A

Breach of rent covenant:

  1. Action for debt:
    The tenant can be sued on its covenant
    to pay rent; can only recover six years’
    arrears.
  2. Forfeiture:
    Bringing the lease to a premature end.
  3. Commercial Rent Arrears Recovery (CRAR):
    Requires a landlord to serve an enforcement notice on the tenant giving seven clear days’ notice that it will seize goods. (not available in mixed use or residential premises)
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2
Q

What remedies are available to the landlord when there is a breach of a non-rent covenant?

A

breaches of other types of covenant than rent (eg repair covenant):

  1. Injunction
  2. Specific performance
  3. Forfeiture
  4. Damages:
    ordinary contractual rules as to the measure of damages will generally apply.
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3
Q

What are the different ways a lease can end?

A
  • Notice to quit
  • Merger;
    Tenant acquires landlord’s interests - becoming its own landlord.
  • Forfeiture
  • Break clause
  • Surrender;
    Handing back of the lease by the tenant to the landlord with their consent.
  • Effluxion of time;
    no notice is needed at the end of a fixed term.
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4
Q

What is the notice to quit?

A

This is the method for determining a periodic tenancy.
For a yearly tenancy, either side must give at least half a year’s notice to quit to determine the tenancy

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5
Q

How do we identify forfeiture in both legal and equitable lease?

A

Legal leases: express forfeiture clause in the lease (NEVER implied).

Equitable lease: No need to be an express clause as the right to forfeit for non-payment of rent IS IMPLIED.

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6
Q

How does a landlord exercise the right of forfeiture?

A

For both non-payment of rent or breach of covenant:

  1. peaceably re-entering the property; (business premise can change peaceably to physically.)
  2. by obtaining a court order (needed in residential premises)
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7
Q

What is the forfeiture procedure?

A

Step 1: Has there been a breach?

Step 2: Is there a forfeiture clause?

Step 3: Has there been a waiver?

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8
Q

What is the importance of a waiver?

A

If the landlord wishes to forfeit, he must not have waived his right to forfeit.
he does so when..

  1. he is aware of the acts or omissions giving rise to the right to forfeit; and
  2. he does some unequivocal act recognising the continued existence of the lease.
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9
Q

Can a waiver take place inadvertently?

A

Continuing breach: waiver only lasts until the next day the breach continues at which point the landlord can reject the rent and forfeit the lease

Non continuing: subletting without consent, waiver is permanent, ie once rent is accepted the landlord can never again forfeit for that specific breach.

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10
Q

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

A

Step 1: Has there been a breach?

Step 2: Is there a forfeiture clause?

Step 3: Has there been a waiver?

Step 4: Formal demand

Step 5: Exercise the right

Step 6: Relief

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11
Q

What is step 4 in the procedure for forfeit of non-payment of rent?

A

Formal demand:

The landlord must have made a formal demand for the exact amount of
rent due on the day when it becomes payable, upon the premises, between the
hours of sunrise and sunset

UNLESS

  • The lease expressly waives this requirement.
  • At least six months’ rent is in arrears and there are insufficient distrainable (ie seizable) goods on the premises to satisfy all the arrears due.
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12
Q

What is step 5 in the procedure for forfeit of non-payment of rent?

A

Exercise the right
The landlord can proceed to exercise its right to forfeit by court order or peaceable re-entry.

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13
Q

What is step 6 in the procedure for forfeit of non-payment of rent?

A

The tenant, and any sub-tenant, can apply for relief from forfeiture.

Relief is the court’s discretion to allow the lease to continue.

Relief can be applied for regardless of whether the right has been exercised by court order or peaceable reentry and will usually be granted if the tenant can pay off the arrears.

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14
Q

What is the procedure for forfeiture of breach of other covenants?

A

Step 1: Has there been a breach?

Step 2: Is there a forfeiture clause?

Step 3: Has there been a waiver?

Step 4: s.146 notice

Step 5: Exercise the right

Step 6: Relief

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15
Q

What is step 4 in the procedure for forfeit of breach of other covenants?

A

The the landlord must first serve notice upon the tenant under LPA 1925, s 146.

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16
Q

What must the notice contain?

A
  • Specify the breach complained of.
  • If capable of remedy, require it to be
    remedied within a reasonable time (3 months).
  • Require the lessee to make compensation in money for the breach if the landlord requires such compensation.
17
Q

What is the difference between breaches capable of remedy and those that are not under the notice?

A
  • Capable of remedy AND the tenant does not remedy the breach within a reasonable time:

Forfeit either by peaceable re-entry or by
obtaining a court order

  • Not capable of remedy:

Landlord must merely give the tenant enough time to consider its position, for example 14 days, before proceeding to forfeit

18
Q

What is step 5 in the procedure for forfeit of breach of other covenants?

A

If the breach is not remedied in reasonable time, the landlord can proceed to forfeit by court order or peaceable re-entry.

19
Q

What is step 6 in the procedure for forfeit of breach of other covenants?

A

The tenant may then apply for relief from forfeiture under LPA 1925, s 146(2).

It generally depends on:
- how willful and blatant the breach was,
- the gravity of the breach,
- the landlord’s motives for wanting forfeiture,
- the damage to the premises and
- whether the breach can be put right

20
Q

What are the time limits for a tenant to apply for relief during the forfeiture of breach of other covenants?

A
  1. The landlord has exercised its right by applying for a court order:

Relief applied to BEFORE the court order is made.

  1. The landlord has exercised its right by peaceable re-entry:

Apply for relief within a reasonable time after peaceable re-entry.

21
Q

Can a subtenant apply for the right to relied in non-rent breaches?

A

LPA 1925 allows a subtenant to apply to the court for relief within a reasonable
time after peaceable re-entry

Courts discretion.

Land law (half) (10 decks)

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