Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Property Law and Practice > U7. Leasehold Remedies (REMEDIES) > Flashcards

U7. Leasehold Remedies (REMEDIES) Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards
1
Q

What are the remedies for a breach of a leasehold covenant to pay rent? (Not paying rent)

A
  1. Debt Action or Insolvency Proceedings
  2. Forefieture
  3. Commercial Rent Arrears Recovery
  4. Pursuit Former Tenants and Gaurantors
  5. Recourse to Rent Deposit
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the Remedies for a breach of other covenants (not covenant to pay rent)?

A
  1. Specific Peformance
  2. Damages
  3. Self Help - Jervis v Harris Clause
  4. Forefeiture

5.Pursuit of former tenants and Gaurantors

  1. Rent Deposit
  2. Surrender
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What remedies can be used for both not paying rent, and other covenant breaches?

A
  1. Forefeiture
  2. Pursuit of former tenants and gaurantors.
  3. Rent Deposit
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is a debt action for a breach of covenant?

A

A remedy for a breach of the covenant to pay rent

A Debt Action Court Proceeding brought within the relevant limitation period of 6 years.

Costly, time-consuming

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is insolvency proceedings for a breach of covenant?

When can it be used?

A

Insolvency Proceedings are a Court Action used if Rent has not been paid.

The tenant must meet the insolvency thresholds of:

Personally be in £5000 of debt

Corporate winding up - £750

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is the right to forfeit for a breach of covenant to pay rent?

A

Known as Re entry, it allows the landlord to:

  1. Re enter and take possession
  2. Bring the lease to an end

It is the most dramatic remedy.

ONLY AVALIABLE IF THERE IS AN EXPRESS CLAUSE IN THE LEASE ALLOWING

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

When is the only time forefiture can be used?

A

There must be an express clause in the lease providing for it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What must you check on a forefiture clause for a breach of lease of non payment of rent?

A

There must be an express forefiture clause that has been breached (ie amount of time / rent conditions met)

If the clause requires a formal rent demand, one must be made before unless rent has not been paid for at least half a year + there is not enough goods on premises to recover.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the 2 ways for a landlord to use a forfeiture clase for non payment of rent?

A
  1. Court Order
  2. Peaceable Re-Entry (Enter and change locks)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is the significance of ‘RentS’ being used instead of ‘Rent’ in a forfeiture clause regarding nonpayment of rent?

A

RentS will include non payment of service charges or insurance charges being included as a covenant to pay rent, thus non payment of such charges can allow for forfeiture to be used following the procedures of forfeiture for non-rent, which does not always require the need for ‘notice;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What type of breach is non-payment of rent in a lease?

What does this mean?

A

A ‘Once and For All Breach’

This means that it arrises once and for all on an individual breach.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the diffrence between a Once and For all Breach and a Continuing Breach

A

A once and for all breach arrises once and for all on a individual breach (such as the non-payment of rent)

A Continuing breach keeps the tenant liable as the breach continues (Such as a repair covenant)

This is significant, because if a waiver of a right for a breach has been made for a once and for all breach, the right will not arise again for that specific breach (but will for future breaches.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the once and for all breaches?

A
  1. Breach of payment of rent
  2. Breach of Alienation clause
  3. Breach of alterations covenants
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is the effect of a non-payment of rent being a once and for all breach when considering forfeiture as a remedy?

A

If the right to forefit is waived by the landlord, he will not be able to use forfeiture again for that breach until a new future breach has occurred.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

How can a landlord waive his right to forfeiture for a non-payment of rent?

A

By doing anything which acknowledges the landlord and tenant relationship to be continuing, such as:

				1. Accepting or Demanding Rent 
				2. Dealing with tenant applications under the lease (ie request of consent for alterations), or 3. Pursuing Commercial Rent Areas Recovery
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is releif from forefiture?

A

Tenants may apply to the Court for relief from forfeiture.

The Court will decide to grant relief and continue the lease

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is Commercial Rent Arrears Recovery for non payment of rent?

A

Commercial Rent Arrears Recovery allows the landlord to enter commercial premises where there is a written tenancy in order to seize goods belonging to the tenant, sell them, and use the proceeds to settle rent areas.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the difference between Commercial Rent Arrears Recovery v Forfeiture for non payment of rent?

When can they both be used?

A

DIFFERENCE
1. CRAR allows the landlord to enter and take tenants’ goods to sell to settle rent arrears.

  1. Forfeiture is used to enter, repossess, and end a lease.

USAGE:
2. Forefiture may apply to service charges and insurance rent depending on its terms, but CRAR only applies to annual rent (rent for premises)

  1. CRAR also has specific procedural requirements whilst forfeiture does not.
19
Q

What are the 4 procedual rules for using Commerical Rent Arrears Recovery?

A

1, Must be atleast 7 days of rent outstanding to service notice and take goods.

  1. Authorised Enforcement agent must be used
  2. Goods £1350 and under cannot be taken if NECESSARY for tenants business
  3. Agent can only remove property belonging to a tenant
    (Unless sublet, landlord can take from subtenant with 14 days clear notice.)
20
Q

When can a Guarantor be claimed against for a breach of a lease covenant of paying rent?

A

Gaurantors to the current tenant will always be liable under the terms of the guarantee, and to indemnify the landlord for any breach by the tenant.

After a lease assignment, the liability will depend on the type of lease.

Old Leases - Subsequent Gaurantor will only be liable if they gauranted for the whole remainder of the leases term (Rather than just while there tenant was there)

New Leases - Subsequent Gaurantors are automatically released on lawful assignment of lease.

However, can be indirectly liable if guaranteed the outgoings tenants performance under an Authorised Gaurantee Agreement

21
Q

A landlord can claim against a gaurantor for a breach of covenant for not paying rent.

What is the procedure for the landlord to do this?

A

The landlord must serve a section 17 notice for a recovery of a fixed charged upon the Gaurantor.

Notice must be served within 6 months of the sum being owed.

22
Q

What is an overriding lease?

A

If under after a lease assignment, a former tenant or Gaurantor has been served section 17 notice (And so are being claimed against for the current tenants covenant breach of not paying rent) they can apply for an overriding lease.

An overriding lease ‘slots in between’ the landlord and the existing tenant, making the former tenant or Gaurantor the immediate landlord of the current tenant. This allows the former parties to take back control (for example by forfeiting the lease and reletting the premises )

23
Q

What is Specific peformance?

A

A Discretionary equitable remedy requiring an action to remedy a breach.

As it is equitable, it will only usually be granted where the other remedies wouldn’t be appropriate.

The Landlord must also come to equity with clean hands.

24
Q

What lease covenant breaches does the Self Help - Jarvis v Harris Clause apply to?

What does it do?

A

The Landlord can ENTER and check tenants compliance of REPAIR COVENANTS

If breached, landlord can SERVE NOTICE REQUIRING THE TENANT TO DO THE WORK DILIGENTLY AND EXPEDITIOUSLY.

Landlord can ENTER and CARRY OUT the work if the tenant does not, and RECOVER THE COSTS AS A DEBT.

25
Q

For one specific covenant, damages for a breach may be limited.

What covenant is this?

A

Damages for Breaches of a repair covenant may be limited.

26
Q

Damages for a breach of Repair Covenants may be limited. What 2 acts provide this and why?

A

S.18 LTA 1927 - STATUTORY CEILING

LEASEHOLD PROPERTY REPAIRS ACT 1938 - LEAVE TO SUE

27
Q

When suing for damages, if the covenant breach relates to a repair covenant, the landlord must serve a notice of leave to sue.

For what leases may this apply?

What repair covenants does it not apply to?

A

Notice of intention to sue must be served on the tenant, informing them of their right to serve a counter notice, where the lease is:

  1. For 7 years or more, with
  2. At least 3 years left to run

This Act does not apply to the breach of covenant to put the premises into repair within a reasonable time of the tenant taking possession.

28
Q

What is the affect of the leave to sue provision for breaches of a repair covenant?

A

The landlord must serve intention to sue, and inform their tenant of their right to serve a counter notice.

If the tenant serves the notice within 28 days, the landlord will only be able to claim damages if the breach of a repair covenant needs to be immedtley remedied for 1 of 5 reasons:

  1. SUBSTANTIAL DIMUNATION OF VALUE (There has been, or to prevent it)
  2. LAW (To comply with Law)
  3. PROTECT OTHER OCCUPIERS of other parts of the property
  4. AVOID GREATER EXPENSES in the future
  5. Circumstances rendering It JUST AND REASONABLE
29
Q

How long does a tenant have to serve a counter notice after receiving a notice of intention to sue from the landlord for a breach of repair covenant?

A

Within 28 days

30
Q

What is the affect of a counter notice after receiving a notice of intention to sue from the landlord for a breach of repair covenant?

A

The landlord will not be able to proceed with the damages claim unless the repair covenant breaches must be reminded immediately because:

  1. SUBSTANTIAL DIMUNATION OF VALUE (There has been, or to prevent it)
  2. LAW (To comply with Law)
  3. PROTECT OTHER OCCUPIERS of other parts of the property
  4. AVOID GREATER EXPENSES in the future
  5. Circumstances rendering It JUST AND REASONABLE
31
Q

What 2 rules does the Statutory Ceiling provide for claims of damages for a breach of repair covenants?

A
  1. Damages are limited to the amount the value of the reversion is diminished, which could be less than the costs of the repairs.
  2. There will be no damages for a breach of repair covenant if the landlord terminates the lease and plans to demolish or make structural alterations to the property which would make the repairs valueless.
32
Q

When claiming damages for a breach of a repair covenant, the damages may be limited by the Statutory Ceiling and the Leave to Sue Statutory Provisions.

Why do these provisions not apply to self help clause action, and so not limit the amount of damages recoverable.

A

Under a self help clause, a landlord can enter and check compliance with repair covenants.

He can then serve notice, obliging the tenant to carry out work DILIGENTLY AND EXPEDITIOUSLY.

If he does not, the landlord can enter and carry out the repairs, and charge a debt to the tenant to recover costs.

The recovery of a debt is not damages, and so not limited.

33
Q

When can the Self Help Clause be used?

A

ONLY WHEN THERE IS AN EXPRESS PROVISION IN THE LEASE PROVIDING FOR IT

34
Q

Forefiture rules change regarding if the breach was for payment of rent, or another covenant.

When does a s.146 notice need to be served, and what must it include?

A

For breaches other than to pay rent, a section 146 notice must first be served which:

  1. Specifies the breach
  2. Requires remedy of the breach within a reasonable period (if remediable)
  3. Requires the tenant to pay compensation for the breach.
35
Q

Under a forefiture clause, when can compensation not be claimed?

A

Where the damage is unremediable, such as where it was irreparable harm (such as immoral use)

36
Q

What power does a s.146 notice give to tenants ?

A

For breaches of covenants other than to pay rent, landlords must first serve a s.146 notice

The notice gives the tenant 28 days to file a counter notice.

If a counter-notice is served, the landlord cannot proceed without LEAVE OF COURT

37
Q

What are the methods of forfeiture?

A

All forfeiture clauses can be enforced by:

  1. Court Action
  2. Peacable Re-Entry
38
Q

When can a tenant apply for relief from forfeiture?

A

Depends on the Landlords method of Forfeiture:

COURT PROCEEDINGS - Application can be made any time before re entry

PEACEABLE RE ENTRY - May be made by a reasonable period after re entry

39
Q

Can a subtenant or mortgagee apply for relief from forfeiture and why?

A

A Subtenant or mortgagee may also apply for relief from forfeiture as the forfeiture of the headlease will lead to a forfeiture on the underlease

40
Q

When is relief from forfeiture usually granted?

A
  1. The breach is capable of remedy and has been remedied
  2. The landlord is not materially adversely affected
41
Q

What is the diffrence in rules between forfeiture for a breach of covenant to pay rent v other covenants.

A

For a forefiture owing to a breach of covenant other than to pay rent, the landlord must first serve a section 146 notice.

This gives the tenant 28 days to serve a counter notice, which only allows the landlord to proceed with leave from court.

42
Q

What is the difference between pursuing former tenants and guarantors for non payment of rent v other breached covenants

A

Non Payment of rent requires a s.17 notice for unliquidated sums

43
Q

What is an injunction?

A

Discretionary equitable remedy, only available where other remedies are not appropriate

44
Q

What is a surrender of the lease?

A

Allows the parties to bring a lease to an end where both agree. No remedy as such.

Property Law and Practice (17 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions