Property Law 9 Flashcards
When do the security of tenure provisions apply?
…ANY TENANCY where the property comprised in the tenancy is or includes premises which are OCCUPIED BY THE TENANT and are so occupied for THE PURPOSES OF A BUSINESS carried on by him or for those and other purposes…
What is a fixed term tenancy
· A fixed term tenancy creates exclusive possession and a proprietary interest.
· It binds successors in title to the landlord.
· The tenant can use the property as if they were the owner
Can a fixed term tenancy benefit from security of tenure?
Yes
What is a Periodic tenancy?
· A periodic tenancy creates exclusive possession and a proprietary interest.
· It binds successors in title to the landlord. However, it can be brought to an end by notice.
It’s essentially a tenancy that goes from one period to the next.
Can a periodic tenancy benefit from security of tenure?
· It MAY benefit from security of tenure.
What is a licence?
· A licence is a personal permission to be on the land and is not a proprietary interest.
· It does not bind successors in title to the owner granting the licence.
Can a licence to occupy benefit from security of tenure?
No
What is a tenancy at will?
· A tenancy at will is similar to a licence as it is a personal permission but unlike a licence, the tenant can have exclusive possession.
· However, the important feature is that either landlord or tenant can end the tenancy at any time.
Can a tenancy at will benefit from security of tenure?
No
If the tenant leaves the premises vacant, can they benefit from security of tenure?
No - including underlets
Which tenancies are excluded from security of tenure?
- Agricultural tenancies (as they have their own statutory regime)
- Mining leases
- Service tenancies (a lease granted as part of a tenant’s employment, eg, a security guard’s flat)
- Fixed term tenancies of six months or less (but can become protected if the tenant has been in occupation for twelve months or more, whether through successive tenancies or if the tenancy is renewable beyond six months)
What tenancies can be ‘contracted out’ of the Landlord and Tenant act?
Fixed term tenancies (note a periodic tenancy cannot be contracted out).
What is the process for contracting out?
- The landlord must serve a warning notice on the tenant in a prescribed form.
- It must be served before the parties complete the lease.
- The tenant must provide a declaration in prescribed form to the landlord before completing the lease.
- If lease completion is at least 14 days from the date of the warning notice then this can be a simple signed declaration.
- If lease completion is less than 14 days away, then the tenant must provide a statutory declaration (declared before an independent solicitor).
- The lease must contain reference to both the notice and declaration (or statutory declaration) of contracting out.
What happens if the process for contracting out is not followed?
the likelihood is that the lease will enjoy security of tenure
How can a Landlord bring a protected tenancy to an end?
- forfeit the lease if there has been a breach of the tenant’s covenants and the lease allows this
- serve a section 25 notice, which may indicate an intention to recover the premises or offer a renewal lease
How can a Tenant bring a protected tenancy to an end?
- simply to vacate the premises at the end of the contractual term
- to surrender the lease with the landlord’s agreement
- for a periodic tenancy, serve notice to quit to bring the tenancy to an end
- serve a section 26 notice to request a new tenancy
- serve a section 27 notice to leave the premises
When must the Landlord serve a section 25 notice?
No less than 6 months and no more than 12 months before the date of termination.
What are the two types of section 25 notices and what is the key difference between them?
A ‘friendly’ section 25 notice - landlord is willing to renew the lease to start the day after the date of termination. It will propose the rent to be paid and principal terms of the new tenancy.
A ‘hostile’ section 25 notice - landlord intends to oppose renewal of the lease. The landlord can only do this on certain statutory grounds, and must specify on which ground or grounds the landlord intends to rely.
In what circumstances can a hostile section 25 notice be issued?
- persistent and serious breach by the tenant of a repairing obligation
- persistent delay by the tenant in paying rent
- serious and persistent other breaches of covenants by the tenant
- the landlord offers suitable alternative accommodation
- the landlord intends to demolish or reconstruct the premises or carry out substantial construction work which require possession
- the landlord intends to occupy the premises for itself
What are the two grounds for a s.25 notice at court?
Mandatory - if established court must grant
Discretionary - if established, down to court’s discretion
When will compensation be due in respect of a s.25 notice?
where there is no fault by the tenant.
What is the amount of compensation due in respect of compensatory a s.25 notice?
- at 1x the rateable value if the business has occupied the premises for less than 14 years
- at 2x the rateable value if the business has occupied the premises for 14 years or more
For this s.25 notice what evidence will be required, is the notice discretionary and is it compensatory?
Ground (a) – breach of tenant repairing obligation
Evidence will be required of a serious breach. Discretionary, not compensatory
For this s.25 notice what evidence will be required, is the notice discretionary and is it compensatory?
Ground (b) – persistent delay in paying rent
Evidence of length of delay and number of failures to pay rent on time. Discretionary, not compensatory
For this s.25 notice what evidence will be required, is the notice discretionary and is it compensatory?
Ground (c) – other substantial breaches of tenant obligations
Evidence of serious and persistent breaches. Discretionary, not compensatory
For this s.25 notice what evidence will be required, is the notice discretionary and is it compensatory?
Ground (d) – availability of suitable alternative accommodation
Landlord must have made an offer of alternative accommodation suitable to the tenant (with regard to the tenant’s business and goodwill). Mandatory, not compensatory
For this s.25 notice what evidence will be required, is the notice discretionary and is it compensatory?
Ground (f) – intention to demolish or reconstruct premises or carry out substantial construction
Firm and settled intention to redevelop, possibly planning permission or construction contract. Mandatory, is compensatory
For this s.25 notice what evidence will be required, is the notice discretionary and is it compensatory?
Ground (g) – landlord intends to occupy premises
Firm and settled intention by landlord who must have owned the reversion for at least 5 years before the date of termination. Mandatory, compensatory
Which notice would a tenant use to renew their held over lease?
section 26 notice
Which notice would a tenant use to end their held over lease?
section 27 notice
Can more than one notice be issued at the same time?
No
What are the requirements of a section 26 notice?
- having a protected tenancy,
- must have a lease that originally granted a term of more than one year. (For a tenancy of a year or less, the tenant cannot start the renewal process, although the landlord can with a friendly section 25 notice).
- minimum notice period of six months, and a maximum notice period of twelve months. the notice is expires on the date of the renewal lease.
What are the time limits for a landlord in receipt of a section 26 notice?
Has two months from the section 26 notice to serve a counter-notice (ie opposing the grant of a renewal lease).
As with a hostile section 25 notice, the landlord can only do so on one or more of the statutory grounds.
What is a section 27 request?
Tennant’s notice to quit.
When must a section 27 notice be served?
Must give three months of the intended termination date, which must be no earlier than the date on which the contractual term ends.
Once a section 27 notice has been served, can the tenant serve a section 26 notice, or the landlord serve a section 25 notice?
No
Who can apply to the court to renew/cancel the lease under a section 25 notice?
Either the tenant (to renew) of the Landlord (to cancel).
When is the deadline for applying to the court in respect of a s.25 notice?
the deadline for applying being the date of termination specified in the notice.
What is a section 26 notice?
A tenant wants to renew the lease
When must a s.26 notice be served?
- commencement date of the new lease must be no less than 6 months and no more than 12 months from the date the request is made.
- old lease continues until the day before the date for the new tenancy in the notice.
What is the earliest date that a s.26 notice can request a new tenancy from?
Cannot be before the contract expiry date of your current lease.
(So can issue the notice before the contract expires, but the notice must set the date for the new tenancy to begin after the contract has expired)
Can the tenant issue a s.26 notice if the landlord has already issued a s.25 notice?
No
What must be included in a section 26 notice?
- prescribed form
- given to the landlord
- sets out tenants proposals including:
- property details
- rent
- other terms to be included
What must the landlord do on receipt of a s.26 request if they don’t want the tenant to stay?
Serve a counter notice on the tenant the he will oppose an application to the court.
When can the tenant first apply to the court in respect of a s.26 notice?
After either:
- the landlord has served a counter-notice, or if not,
- two months have elapsed from the section 26 notice.
But they must apply to the court by the date specified for commencement of the new tenancy that they set in their s.26 notice.
When is the deadline for applying to the court in respect of a s.26 notice?
the day before the proposed commencement date of the new lease. The deadline may be extended by the parties agreeing in writing.
What are the grounds for denying a tenancy in a s.26 counter notice by the Landlord.
a- repair and maintenance
b- delay in paying rent
c- substantial breaches in obligations
d- LL willing to provide alternative reasonable accommodation*
e - low rent $
f- to demolish and reconstruct$
g- LL wants the property himself$
- mandatory - the court has not discretion once proved
$ compensatory ground
Which grounds for opposing a s.26 notice are mandatory?
d- LL willing to provide alternative reasonable accommodation
f- to demolish and reconstruct
g- LL wants the property himself
Which grounds for opposing a s.26 notice are compensatory?
e - low rent
f - to demolish and reconstruct
g- LL wants the property himself
What is the maximum length of tenancy the court can grant?
reasonable in all of the circumstances - max 15 years
What will be the rent the court will grant
Market rent
Who can apply to the court to impose an interim rent?
Either party
What is the interim rent based on?
Market rent
If granted, When does the interim rent apply from for a s.25 notice?
The earliest date of termination that could have been specified in the landlord’s section 25 notice.
If granted, When does the interim rent apply from for a s.26 notice?
the earliest date that could have been specified as the proposed commencement date in the tenant’s section 26 notice.
What happens if the tenant is not happy with the terms decided by the court?
- It has 14 days to ask the court to revoke the court order.
- If asked, the court must agree, and
- the tenant will then have no right to renew.
If the landlord is opposing renewal (either on s.25 or in opposition to a s.26) what order are they looking for?
order for termination of the existing lease.
If the court grants an order for a new lease, or a termination of the existing lease, when will the existing lease come to an end?
Three months and 21 days after the date of the order.
Which fixed term tenancies are excluded from security of tenure?
Those under six months unless
- there’s a provision allowing for its extension over 12 months, or
- the tenant has been in occupation for 12 months.
Can the grounds be changed once the notice is served?
No
Which short term tenancies are protected by the act?
Normally tennancies under 6 months are not protected. However they will be if:
- the lease contains a provision for extending over 6 months, or
- the tenant if it’s predecessor have been in occupation and carrying on the same business for over 12 months.
