security of tenure

Question 1

wear are the requirements for security of tenure?

Answer 1

1. Fixed tenancy/ periodic tenancy
   not for agricultural, mining, service lease,
   MORE THAN SIX MONTHS- can be protected id the tenant has been in occupation for 12 or more, whether through successive tenancies or if the tenancy is renewable beyond 6 months.
2. T must occupy the premises
3. must be for the purpose of business

Question 2

what sort of lease can contract out of security of tenure?

Answer 2

• Only a fixed lease

Question 3

What is the procedure for contracting out of security of tenure

Answer 3

• LL serves warning notice on T before completion

If at least 14 days before completion- T provide a simple signed declaration

If less than 14 days- Ts provide a statutory declaration

The lease must contain reference to the warning notice and declaration and the act

Question 4

what are the implications of security of tenure?

Answer 4

• protected tenancy- T has a right to stay in occupation, this is known as ‘holding over’. LL cannot evict unless allowed methods.

Question 5

How can the LL end a protected tenant?

Answer 5

1. forfeit the lease if there has been a breach of Ts covenants
2. Serve a section 25 notice

Question 6

How can a tenant end a protected tenancy/ continue (5)

Answer 6

1. vacate the premises
2. surrender the lease
3. for periodic tenancy- serve a notice to quit
4. serve section 26 notice to request new tenant
5. serve s.27 to leave the premises

Question 7

when must a s.25 notice be served

Answer 7

no less than 6 months and no more than 12 months before the proposed date of termination. The proposed date of termination must be on to after the date on which the contractual term ends.

Question 8

What is the difference between a friendly and a hostile s25 notice?

Answer 8

Friendly- LL is willing to renew the lease, to start the day after the date of termination

A hostile s25- LL intends to oppose renewal of the lease. LL can only do this on certain statutory grounds which must be specified

Question 9

what are the grounds for a hostile s25 notice?

Answer 9

1. persistent and serious breaches of a repairing obligation
2. persistent delay in rent
3. serious and persistent other breaches of covenants by T
4. LL offered suitable alternative accommodation
5. LL intends to demolish or reconstruct the premises to carry out substantial construction work
6. LL intends to occupy the premises for itself - only relied on if LL owned the reversion for 5 years

LL must be able to substantiate the grounds it relies on.

Question 10

what’s the difference between compensatory and non- compensatory grounds?

Answer 10

Compensatory- no fault of T. T may be entitled to compensation

Non- compensatory- Ts fault no entitlement to compensation

Question 11

what’s the difference between compensatory and non- compensatory grounds?

Answer 11

Compensatory- no fault of T. T may be entitled to compensation

Non- compensatory- Ts fault no entitlement to compensation

Question 12

which grounds are discretionary and which are mandatory

Answer 12

Disc:
- breach of T repairing obligation.
- persistent delay in rent
- other substantial breached of Ts obligations

Mand:
- suitable alternative provided
- substantial repairs/ construction
- LL intends to occupy itself

Question 13

requirements for a s26 notice

Answer 13

• tenancy must be protected
• original lease for more than 1 year
• T must propose the commencement date of the new lease: Minimum 6 months ma 12 months from the date of the notice period.

Question 14

how can the LL oppose the s26 notice

Answer 14

LL can serve a counter notice within 2 moths of the section 26 notice. The LL can only oppose on one or more of the statutory grounds of s25

Question 15

requirements for a s26 notice

Answer 15

• tenancy must be protected
• original lease for more than 1 year
• T serves s26 12 months before end of contract
• T must propose the commencement date of the new lease: Minimum 6 months max 12 months from the date of the notice period.

Question 16

what are the consequences of a s26

Answer 16

• triggers the end of the existing lease
• prevents landlord from serving s25

Question 17

when can a tenant serve a s27 notice?

Answer 17

No less than three months before end of lease

Question 18

when can parties apply to court following a s25 or s26 notice?

Answer 18

s25- either party can apply after the service but before the date of termination specified on the notice

s26- after LL serves a counter notice or 2 months have elapsed and L did not serve a counter notice

the deadline is the day before the proposed commencement of the new lease.

Question 19

what terms can the court give?

Answer 19

• Up to 15 years, market rent, other matters decided regards to current tenancy and relevant circumstances.