WS 5 - Leases

Question 1

Stages for a leases question

Answer 1

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

Question 2

Three requirements for a lease?

Answer 2

. 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)

Question 3

Antoniades v Villiers

Answer 3

. 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:

1. The relationship between the occupiers
2. Intended use of the property
3. Nature, extent and mode of accomodation

Question 4

AG Securities v Vaughan: Why was it a licence?

Answer 4

Agreements were different (signed on different dates)

Parties described as owner and licencee

Bedrooms occupied on a rolling basis by incoming occupiers

Question 5

Why is rent not necessary?

Answer 5

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

Question 6

Two types of lease?

Answer 6

Fixed or periodic

Question 7

Berrisford v Mexfield?

Answer 7

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.

Question 8

How to terminate a fixed lease?

Answer 8

1. 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
2. Forfeiture – where the lease includes provisions allowing LL to prematurely end if T fails to meet obligations
3. 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

Question 9

Define a periodic lease

Answer 9

Lease automatically renews at the end of each period provided: T pays rent and neither side serves notice (JAVAD v MOHAMMED)

Question 10

What sort of wording will indicate a periodic lease?

Answer 10

weekly tenancy, monthly tenancy, from year to year etc.

Question 11

Must a periodic tenancy be created expressly?

Answer 11

No, can be implied where the tenancy is taken up with reference to a particular period.

Question 12

General rule on giving notice in periodic tenancy

Answer 12

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:

Question 13

s.5 Protection from Eviction Act 1977

Answer 13

1. 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.

Question 14

s.3 Protection from Eviction Act 1977

Answer 14

2. 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

Question 15

s.205(1)(xxvii) LPA 1925

Answer 15

the date of commencement of the lease must be known by both parties at the start. If no date, deemed to start immediately.

Question 16

Security of tenure

Answer 16

• 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)

Question 17

s.11 Landlord and Tenant Act 1985

Answer 17

(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.

Question 18

s.13(1) LTA 1985

Answer 18

says that s.11 applies to a lease of a dwelling-house for term of less than 7 years

Question 19

s.13(1)(b) Landlord and Tenant Act 1987

Answer 19

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

Question 20

Effect of s.13(1)(b)

Answer 20

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]

Question 21

O’Brien v Robinson

Answer 21

Landlord must be made aware of the problem in order to be liable to carry out repairs

Question 22

What can tenant do if LL refuses?

Answer 22

• Self-help remedy (sort out himself and charge)

* S.17 – degree of specific performance