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Mick's APC > Subs: Landlord & Tenant > Flashcards

Subs: Landlord & Tenant Flashcards

1
Q

Difference between a lease and a licence?

A
  • Lease gives exclusive possession of the property for a term at a rent.
  • a licence is a permission to make it lawful for them to use the land. Licences are personal arrangements not capable of being assigned.
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2
Q

Tell me of some case law relating to defining a lease or a licence

A

Street v Mountford - It doesn’t matter what the document calls itself on the cover sheet, if, in all other respects, the document looks like a lease it probably is.

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3
Q

What does “contracted out” mean?

A

Excludes the security of tenure provisions of the Landlord and Tenant Act 1954 Part II.

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4
Q

What is a tenancy at will?

A

Occupied at the will of the Landlord. Short term. Still allows exclusive possession. Must be careful not to create a periodic tenancy

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5
Q

Assignment V Subletting what is the difference?

A

1) Assignment - Dispose of whole lease (pre 1996 Privity of contract applies, original tenant remains liable). AGA introduced by L & T Covenants Act 1995.

2) Subletting - subsidiary lease created.

Both need permission, usually not unreasonably withheld but usually subject to conditions.

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6
Q

What is a hostile notice from a LL?

A

S.25 Notice with ground in s.30 a-g

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7
Q

Case law on Break Clauses

A

Marks & Spencer’s v BNP Paribas 2014 - Court held that pro-rata rent rebate not implied in lease.

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8
Q

What is interim rent?

A

Payable after current lease has ended and the tenant is holding over. LL or tenant can apply for it.
Effective from new lease would have been effective as stated in s.25/26 notice (6 months after notice been served).
Market rent of property.

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9
Q

What is Section 38a?

A

Sets out the procedures in which must be followed of contracting a lease outside the act.

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10
Q

What is security of tenure?

A

Tenant has right to remain in demise and right to lease renewal.

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11
Q

Which dispute resolution would you use for a RR?

A

RR - Independent expert or arbitrator.

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12
Q

What is PACT?

A

Professional Arbitration on Court Terms - ADR for lease renewals

  • ‘delegated’ to an independent third party who act as arbitrator or independent expert.
  • Parties no longer need to obtain consent from courts.
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13
Q

What does a tenant have a right to at renewal? L&T Act…

A

Same terms as previous or market practice to max 15yrs.

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14
Q

What is Section 30?

A

Set out the 7 grounds of opposition for a LL to renew an inside the act lease?

A-G

a) Breach of repair.
b) Persistent delay in paying rent.
c) Other substantial breach.
d) Provide suitable alternative accommodation.
e) Uneconomic subdivision - (compensation payable)
f) Demolition or reconstruction - (compensation payable).
g) Owner occupation (compensation payable).

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15
Q

What does section 37 relate to?

A

If LL obtains possession due to a successful Section 25 application and tenant has not breached the terms of the lease.

Tenant can receive compensation…

<14yrs occupation = 1 x RV.
>14yrs occupation = 2 x RV.

Only on grounds e - g.

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16
Q

Describe the steps you would take to conduct a Rent Review…

A
  • Am I competent?
  • Conflict of Interest?
  • Signed Terms of Engagement?
  • Obtain all information from the client.
  • Read the lease + any licences/deeds of variation.
  • Is time of the essence?
  • Undertake market research + Inspection.
  • Produce a rent valuation report.
  • Serve rent notice.
  • Negotiate.
  • Conclude.
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17
Q

What are Rent Review usual disregards?

A

1) Tenants occupation.
2) Rent free for fit-out.
3) Goodwill.
4) Tenant’s improvements where consent obtained (Ponsford v HMS Aerosols)

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18
Q

What does the Landlord and Tenant Act 1927 set out.

A

That a Landlord cannot unreasonably withhold consent for alterations.

LL can still ask for :

  • Payment if property value decreases, is damaged or value reduced of neighbouring LL property.
  • Legal Fees.
  • Full reinstatement unless value increased.
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19
Q

What is the objective of Code for leasing business premises 2020?

A

To improve the quality and fairness of terms.

Identifies important terms: Demise, term, renewal rights, Rent, RR, Alienation etc.

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20
Q

What is the difference between dispute resolution and alternative dispute resolution?

A

ADR is used to avoid litigation.

  • Cheaper & quicker
  • More flexible
  • Confidential
  • Specialists can be involved rather than lay judge.
21
Q

What is litigation?

A

Taking legal action through the Courts, defined by the Civil Procedure Rules. Litigation is a public process so it is not possible to preserve confidentiality.

22
Q

What is the role of an arbitrator?

A

1) Governed by Arbitration Act 1996.
2) Arbitrator award is confidential. Court isn’t.
3) Award is binding.

23
Q

What is the general process to a lease renewal?

A
  • Am I competent?
  • Conflict of Interest?
  • Signed Terms of Engagement?
  • Obtain all information from the client.
  • Read the lease + any licences/deeds of variation.
  • Is it inside the Act.
  • Undertake market research + Inspection.
  • Produce rent valuation report.
  • Serve notices.
  • Negotiate.
  • Conclude.
24
Q

Define Time is of the Essence?

A

The need for timely completion.

25
Q

What is the timescale for a Landlord’s notice being served in accordance with Section 25?

A

A date not more than 12 months and not less than 6 months before the date of termination of the tenancy.

26
Q

What is a Section 26 notice?

A

A notice served by a tenant requesting a new tenancy beginning with a date not more than 12 months and not less than 6 months after the making of a request.

27
Q

If a Landlord opposes A Section 26 notice, what must be done?

A

Serve a counter-notice within 2 months

28
Q

What does section 24 state?

A

A tenancy protected within the act does not expire by effluxion of time - but only when one party serves notice. When no party serves notice, this is called holding over.

29
Q

What is a section 25 notice?

A

LL notice served no more than 12 months and no less than 6 months before end of a lease.

30
Q

How must a section 25 notice be served:

A
  • Be given by a competent LL
  • Relate to the whole property
  • State the date fo the termination
  • Be in the prescribed form and inform the tenant of their rights.
  • If LL wants to grant a new lease (non-hostile) the proposed terms of the new lease must be stated.
  • Where the LL opposes a new lease (hostile), the ground(s) of opposition must be stated.
  • Parties can extend time limits.
  • Maximum term of 15 years can be granted by the County Court.
31
Q

What is in the contents of a section 25 notice?

A
  • Name and address of the LL and Tenant.
  • Address of the property
  • Confirmation if a new tenancy is to be opposed or granted (Hostile or Non-hostile)
  • Notice of the date to end the Tenancy
  • Confirmation of the date of response
  • If non hostile, the LL proposal for a new tenancy to include terms and proposed rent
  • if opposed (Hostile) the ground(s) for opposition
  • strong recommendation to seek professional advice
32
Q

What is a Section 26 notice?

A
  • Tenant can serve a notice requesting a new tenancy beginning with a date no more than 12 month and no less than 6 months, after making the request.
  • The notice must be in the prescribed form.
  • It must state the tenants proposal for the new lease and include the proposed rent.
  • The LL must serve a counter notice within 2 months, if this is opposed.
33
Q

What is a Section 27?

A
  • Notice to be served by the tenant anytime of they want to leave with a 3 month notice after the lease expiry.
  • If the tenant moves out prior to the lease expiry date then no notice needs to be served if the property is vacant
34
Q

How to check the validity of a notice?

A

It is always important to check that the notice served is valid, in the prescribed form. Always check with solicitors.

35
Q

Grounds A-E of section 30 are what?

A

Discretionary…

The court will decide whether it is resonable.

36
Q

Grounds F-G of section 30 are what?

A

Mandatory…

  • Redevelopment - LL must prove firm intention, prove funding and planning, subnational work & necessity to gain VP and and ability to redevelop provided VP is secured (Planning application)
  • Occupation - LL must prove they have owned property for 5 years & prove intention to occupy.
37
Q

What does Section 32-35 lay out?

A

The terms of a new lease.

  • States that a 15 year maximum term can be imposed by the court.
  • Must be at Market Rent
  • Ignore goodwill, previous occupation & and LL approved improvements within the last 21 years.
38
Q

What are the four assumptions for a lease renewal?

A
  • That it is a new tenancy.
  • There is a willing LL and tenant.
  • Premises is to be let with VP.
  • Any effect on rent if the tenant has assigned or subletted the lease.
39
Q

What does section 34 set out?

A

Basis of valuation for the new rent.

40
Q

What does section 24a relate to?

A

Interim rents

41
Q

What is a Section 40?

A

Notice requesting information from either party.

42
Q

What does a Section 40 seek to achieve?

A
  • So that a LL or a Tenant can check exactly who is the competent LL or Tenant with statutory protection.
  • Can be served by either party during the last two years of tenancy.
  • Details such as name, address etc must be provided within a month. Failure to do so is a breach of statutory duty.
43
Q

What is a Section 44?

A
  • Definition of a competent LL
  • and the person/body upon whom a notice should be served or who should serve the notice.
  • Should be a freeholder or superior tenant of an unexpired lease term of over 14 months.
44
Q

What are the procedures in which must be followed for contracting a lease outside the act.

A
  • LL is required to serve a notice on the perspective tenant, warning that the proposed lease will not be protected. Know as a “health warning”.
  • The tenant must make a declaration that they have received the notice and accept its terms.
  • This must be completed before the lease is signed.

2 types of declaration.

  • Simple Declaration - given when parties have more than 14 days, prior to committing lease
  • Statutory declaration - when parties have less than 14 days prior to lease commitment and must be made before a solicitor.
45
Q

What is Privity of Contract?

A

In the context of a business tenancy, the “privity of contract” doctrine means the first (original) tenant can assign his interest in the tenancy (presupposing the lease permits assignment), but not his relationship with the landlord.

46
Q

What parts of the 1954 Act govern PACT?

A

Section 29 - Order by Court for new tenancy, S32-35 Terms of the new tenancy.

47
Q

What goes into a rent review memorandum?

A
  • Name of landlord and tenant
  • address of property
  • date of the lease and rent review
  • confirmation of the new rent agreed
  • signed and dated by both parties
  • Can also be recorded as expert determination or arbitrators award OR Written acceptance of Calderbank offer Or an open letter (not subject to contract).
48
Q

What was the aim of the L&T 1925 Act?

A

It was intended to modernise the English law of real property. The Act deals principally with the transfer of freehold or leasehold land by deed.

Mick's APC (17 decks)

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