WS 5 - Leases Flashcards
Stages for a leases question
Is the right a lease or a licence?
Have the formalities for the creation of a lease been satisfied?
Is the lease enforceable?
Repair obligations
Three requirements for a lease?
. Certainty of duration (Lace v Chantler)
. Exclusivity of possession (Street v Mountford) - too the exclusion of all others
. Rent (Ashburn Anstalt v Arnold - don’t need rent)
Antoniades v Villiers
. All signed at same time, under same document, identical terms. The clauses held to be a sham, and this was a lease:
- Attempts to exclude EP must be genuine
- Consider:
- The relationship between the occupiers
- Intended use of the property
- Nature, extent and mode of accomodation
AG Securities v Vaughan: Why was it a licence?
Agreements were different (signed on different dates)
Parties described as owner and licencee
Bedrooms occupied on a rolling basis by incoming occupiers
Why is rent not necessary?
a. Rent not necessary for a lease (Ashburn Anstalt v Arnold, also Court of Appeal referred to s.205(1)(xxvii): defines term of years absolute: “a term of years (…whether or not at a rent)”
b. But, where rent is paid, it will certainly indicate formal landlord/tenant relationship
Two types of lease?
Fixed or periodic
Berrisford v Mexfield?
recent case law has developed in this area – consider significance of Berrisford v Mexfield 2011; leases for uncertain terms are converted into a 90 year lease by operation of law (see s.149(6)) – but only for human persons, not companies.
How to terminate a fixed lease?
- Automatic – end of lease period. LL takes possession subject to statutory provisions that govern the procedure for taking possession in the case of dwelling houses and security of tenure
- Forfeiture – where the lease includes provisions allowing LL to prematurely end if T fails to meet obligations
- Break clause – a clause included in the express grant of the lease providing for either party to serve a notice on the other to end the lease prematurely E.g. – LL may have right to end the lease if he succeeds in obtaining certain planning permission
Define a periodic lease
Lease automatically renews at the end of each period provided: T pays rent and neither side serves notice (JAVAD v MOHAMMED)
What sort of wording will indicate a periodic lease?
weekly tenancy, monthly tenancy, from year to year etc.
Must a periodic tenancy be created expressly?
No, can be implied where the tenancy is taken up with reference to a particular period.
General rule on giving notice in periodic tenancy
GENERAL RULE: at least one full period’s notice is required to terminate the tenancy – so if the tenancy began on a Monday, cannot serve notice on a Wednesday. Except:
s.5 Protection from Eviction Act 1977
- S.5 Protection from Eviction Act 1977: where premises let as a dwelling, a notice served by either LL or tenant must be in writing, contains certain prescribed information, and is given at least 4 weeks before it is due to take effect.
s.3 Protection from Eviction Act 1977
- S.3 Protection from Eviction Act 1977: LL must obtain court order to recover possession of premises where the occupier continues to reside there under a lease or LICENCE
s.205(1)(xxvii) LPA 1925
the date of commencement of the lease must be known by both parties at the start. If no date, deemed to start immediately.
Security of tenure
• Residential Tenants: Private sector residential tenants – Rent Act 1977 and Housing Act 1988. Both contain detailed provisions for identifying the tenancies to which they apply. LL can only remove tenants on certain grounds. LL will find it easier to remove a tenant if the tenancy falls within the Housing Act 1988 (applies to tenancies granted on or after 15 Jan 1989) than the Rent Act 1977 (applies to tenancies granted before 15 January 1989)
s.11 Landlord and Tenant Act 1985
(1) (a) – to keep in repair the structure and exterior of the dwelling-house (including drains, gutters, and external pipes)
(1) (b) – proper working order supply of water, gas and electricity and for sanitation
(1) (c) – repair and proper working order the installations in the dwelling-house for space heating and heating water.
s.13(1) LTA 1985
says that s.11 applies to a lease of a dwelling-house for term of less than 7 years
s.13(1)(b) Landlord and Tenant Act 1987
A lease which is determinable at the option of the lessor before the expiration of 7 years from the commencement of the term shall be treated as a lease for a term of less than 7 years
Effect of s.13(1)(b)
Therefore, if there is a break clause under 7 years, s.11 applies and landlord has a duty to fix. BUT – MUST BE MADE AWARE OF THE PROBLEM TO BE LIABLE TO CARRY OUT – O’Brien v Robinson [1973]
O’Brien v Robinson
Landlord must be made aware of the problem in order to be liable to carry out repairs
What can tenant do if LL refuses?
- Self-help remedy (sort out himself and charge)
* S.17 – degree of specific performance
