Property (Termination of Lease)

Question 1

What is effluxation of time?

Answer 1

The lease ends at the end of the contractual term.

Question 2

What happens with a fixed-term lease without security of tenure?

Answer 2

It expires at the end of the contractual term. The landlord can require the tenant to vacate and, if they refuse, can treat them as a trespasser and take enforcement action.

Question 3

What if the landlord consents to an unprotected tenant remaining in occupation?

Answer 3

If the landlord consents, the tenant is not holding over (since there is no security of tenure) but is a ‘tenant at will’.

If the landlord accepts rent, the tenancy at will may be converted into a periodic tenancy.

Question 4

What is a break clause?

Answer 4

A break clause is a positive action by a party to end the lease after a certain point (e.g., 6 months break clause).

Question 5

What if it is a protected tenancy and the landlord exercises the break clause?

Answer 5

If the landlord exercises it, it only operates to bring the contractual term to an end. The tenant may still hold over unless security of tenure is contracted out.

Question 6

What if it is a protected tenancy and the tenant exercises the break clause?

Answer 6

It is always effective if the tenant exercises a break.

Question 7

What is Notice to Quit?

Answer 7

Notice to Quit gives the other party a specific date on which to vacate, which must expire on the first or last day of the tenancy period.

Question 8

How does Notice to Quit work with a protected tenancy?

Answer 8

If the periodic tenancy is protected, the landlord may serve notice but it will only end the periodic tenancy.

The tenant will be able to hold over. The landlord will need to serve a hostile s.25 (6-12 months notice) which may double as a notice to quit.

Question 9

What is the notice requirement for a weekly residential tenancy?

Answer 9

4 Weeks Notice.

Question 10

What is the notice requirement for a weekly commmercial tenancy?

Answer 10

1 Weeks Notice

Question 11

What is the notice requirement for a Monthly periodic tenancy?

Answer 11

1 Month

Question 12

What is the notice requirement for a quarterly periodic tenancy?

Answer 12

1 Quarter

Question 13

What is the notice requirement for a yearly periodic tenancy?

Answer 13

6 Months

Question 14

What is surrender in the context of lease termination?

Answer 14

Surrender is when the tenant gives up its leasehold interest to the landlord with landlord agreement.

Question 15

Is a premium payable for surrender of a lease?

Answer 15

Sometimes a premium is payable for surrender. If payable by the tenant, it is called a ‘reverse premium’.

Question 16

What is surrender by operation of law?

Answer 16

It arises when the landlord and tenant act in a way that is inconsistent with the continuation of the tenancy.

For example, the landlord accepts the keys from the tenant understanding they are leaving permanently.

Question 17

What is an express surrender?

Answer 17

An express surrender is when the parties agree by deed to surrender. If concerning a protected tenancy, a notice procedure must be followed.

Question 18

What is a merger in lease termination?

Answer 18

The freehold and leasehold merge and the leasehold ends. This can happen if the tenant acquires the landlord interest or a third party acquires both interests.

Question 19

When are damages available as a landlord’s remedy?

Answer 19

Damages are available if a tenant breaches a covenant, and the landlord can bring proceedings for damages.

Question 20

What is the measure of damages for breach of covenant?

Answer 20

The measure of damages is to put the landlord back into the position they would have been but for the breach.

Question 21

What is an action in debt?

Answer 21

An action in debt is when a landlord issues proceedings to recover debt such as unpaid rent, service charges, or insurance rent.

Question 22

When is an action in debt limited for a tenant’s non-payment of rent?

Answer 22

It is limited to rent in the 6 years before the issue of proceedings.

Question 23

What if the current tenant is an assignee and fails to pay rent?

Answer 23

If the current tenant fails to pay rent and is an assignee, then if it is an old lease or the former tenant gave an AGA, the landlord can pursue the former tenant using the debt action.

Question 24

What is a guarantor’s role in a lease agreement?

Answer 24

A guarantor covers all tenant obligations, so the landlord can pursue unpaid rent and any breaches of covenant.

Question 25

What is CRAR?

Answer 25

CRAR, or Commercial Rent Arrears Recovery, is a self-help remedy allowing landlords to recover rent arrears from tenants without going to court.

Question 26

When can CRAR be used?

Answer 26

CRAR can be used when premises are purely commercial, a minimum of 7 days principal rent is owed, and the lease has not been forfeited.

Question 27

What are the CRAR requirements?

What are the two notice requirments?

Answer 27

• Landlord appoints an enforcement agent with a court certificate;
• 7 days clear notice to enter;
• notice includes amount, ways to repay, and enforcement powers;
• The landlord must serve a further 7 days clear notice if it intends to sell any seized goods.

Question 28

When may specific performance be ordered as a remedy?

Answer 28

An order for the tenant to do something that hasn’t been done, such as putting premises in repair, though this is discretionary and rare.

Question 29

When may an injunction be ordered as a remedy?

Answer 29

An injunction can be ordered for the tenant to not do something, like an unlawful assignment, though unlikely if the action already took place.

Question 30

What is forfeiture?

Answer 30

Forfeiture is the landlord’s right to re-enter and take back premises from the tenant, ending the lease early if allowed by the lease.

Question 31

When is a landlord entitled to forfeit a lease for non-payment of rent?

Answer 31

The landlord can forfeit as soon as the lease permits.

Question 32

When is a landlord entitled to forfeit a lease for other breaches aside from non-payment of rent?

Answer 32

The landlord must serve a s.146 notice with details of the breach, a reasonable opportunity to remedy, and then can proceed if breach is not remedied.

Question 33

What two ways can the landlord achieve forfeiture?

Answer 33

Peaceable Re-Entry

Court Forfeiture Order

Question 34

What is peaceable re-entry?

Answer 34

Peaceable re-entry is when a landlord, without court proceedings, instructs bailiffs to enter premises, change locks, and take possession.

Question 35

What is a court forfeiture order?

Answer 35

A court forfeiture order allows the landlord to reclaim possession through the court, costing more but making tenant challenges difficult.

Question 36

What is a waiver of the right to forfeiture?

Answer 36

If the landlord acts in a way that acknowledges the lease’s continuation with knowledge of the breach, it risks waiving the right of forfeiture.

Implied waiver includes…
* Landlord unequivocally recognising existence of the lease;
* With knowledge of the breach; and
* Communicates that act to the tenant

Question 37

What is a once and for all breach?

Answer 37

Once the landlord waived the right of forfeiture, it will never be able to regain for that breach again.

This happens for…
* Non-Payment of rent
* Unlawful assignment
* Unlawful underletting
* Insolvency event

Question 38

What is a continuing breach?

Answer 38

Each day the breach continues, the landlord regains the right to forfeiture.

Examples include…
* Failure to keep the premises in repair
* Breach of user covenant
* Failure to comply with insurance obligation

Question 39

When can the tenant apply for relief from forfeiture?

Answer 39

As soon as the landlord serves a s.146 notice, or starts proceedings either by peaceable re-entry or issuing proceedings, the tenant can apply for relief.

Question 40

How can a landlord deal with breach of a repair covenant?

Answer 40

Three options…

1. Forfeit > serve s.146 notice, give reasonable remedy time, if the lease is for 7+ years and there are 3 years remaining, wait 28 days for the tenant to serve a counter notice - if they pass, re-enter/issue proceedings.
2. Damages > Issue s.146 notive, (if necessary) give 28 days to allow counter-notice, commence claim (poor choice!)
3. Jervis v Harris Clause (Best Option!)

Question 41

What is a Jervis v Harris clause?

Answer 41

A Jervis v Harris clause allows the landlord to enter property, carry out repairs, and recover costs without a s.146 notice, treating costs as debt recoverable in full.

Question 42

When won’t a landlord be able to claim damages for breach of a a repairing covenant?

Answer 42

The landlord will not be awarded damages if the value of their freehold reversion has been unaffected

For breaches of the tenant’s repair covenant, the level of damages cannot exceed the amount by which the value of the reversion (i.e. the landlord’s freehold interest) has been diminished by the breach.