10. Landlord and Tenant Law Flashcards
(99 cards)
1
Q
What is the precise definition of tenancy?
A
An estate in land. It is used interchangeably with ‘lease’, but usually for shorter or residential terms.
2
Q
What is the difference between land and an estate in land?
A
Land is the land, an estate in land is what the holder enjoys of the land for a time. All land is vested in the Crown.
3
Q
What are the two estates that can exist at law?
A
Fee simple absolute in possession
Term of years absolute
4
Q
Who is the ‘reversioner’?
A
A ‘reversioner’ is the grantor of the lease. The reversioner owns the ‘reversion expectant on the lease’, also known just as a ‘reversion’. It is in itself an assignable right.
5
Q
Where can you find the legislation around what a lease needs to be in order to be legal?
A
ss52-54 LPA 1925.
6
Q
What is the head lease?
A
It is the lease granted by a freeholder.
7
Q
What is an underlease?
A
It is a lease granted by a tenant or sub-tenant.
8
Q
What is the difference between the right in possession and the right in reversion?
A
The right in possession is the current right to present enjoyment of an interest or estate. The right in reversion is the right to possession of an interest or estate at some future time.
9
Q
What should be considered to find out whether a lease has been created according to s205 LPA 1925? Provide a list.
A
Term of years
Taking effect in either possession or in reversion (reversion must take possession within 21 years)
Whether or not at a rent
Within of without impeachment for waste
Subject or not to another legal estate
Either certain or liable to determination (determination = end)
Not a life interest
Term of years doesn’t need to be a full year
10
Q
What is the doctrine of waste?
A
Waste consists of any act that alters the nature of land, whether for the better or for the worse.
11
Q
What is impeachment of waste?
A
It means liability for waste (i.e. altering the nature of land).
12
Q
What is a mesne landlord?
A
A tenant who grants a lease to a sub-tenant. Also known as an intermediate landlord.
13
Q
What are the 3 essential common law requirements for a lease (presuming the landlord/tenant are separate parties and it is an identifiable piece of land)?
A
- the tenant must have a term less than the grantor;
- the duration of the term must be certain; and
- the tenant must be granted exclusive possession.
14
Q
What happens if the lease is only one day longer than the superior lease?
A
The transaction will be regarded as an assignment of the whole leasehold interest, not a sub-lease.
15
Q
What would a fixed commencement date be?
A
A date where the lease starts which is certain or which will become certain before it starts. The courts are flexible with this, e.g. ‘when the property falls vacant’, or ‘on the outbreak of war’ are both accepted.
16
Q
What does it mean by a lease having a ‘fixed maximum duration’?
A
The lease must have a max duration, but the lease doesn’t have to last up to the maximum duration, only that it can. This duration must be defined before the tenant goes into possession though. E.g. ‘for the duration of the war’ is not sufficient.
17
Q
What does the tenant having ‘exclusive possession’ mean?
A
They can keep out strangers and keep out the landlord. They can exercise the rights of an owner of the land.
18
Q
What is the difference between exclusive possession and exclusive occupation?
A
Exclusive occupation is only living exclusively in the property, but the landlord still having the right of possession and accommodating the landlord’s alterations. Right of possession is integral to a lease and it means that the tenant has all the rights of the owner of the land.
19
Q
Can you make a lease into a licence by naming it as such?
A
No, if it has all the characteristics of a lease, it cannot be turned into a licence just by naming it as such.
20
Q
What kind of right is a lease and what kind of right is a licence?
A
A lease is a proprietary right in land, in rem, so it binds the world.
A licence is a personal right, enforceable only against the individual.
21
Q
Against whom can a dispossessed tenant sue for the return of the land?
A
Against any other party - proprietary rights bind in rem, against the world.
22
Q
What does this describe? ‘It only makes an action lawful which without it would have been unlawful’.
A
A licence.
23
Q
What are the four types of licence?
A
- Bare licence
- Licence coupled with grant
- Licence by estoppel
- Contractual licence
24
Q
What is a bare licence?
A
This can be determined (cancelled) at any time. This is the type of licence given to the postman or woman or the window-cleaner.
25
What is a licence coupled with grant?
Where the owner of land grants the right to do something on its property, such as to play football on it or hold a meeting there, a licence is granted to enter the property to exercise the right.
26
What is a licence by estoppel?
Where the owner of land represents that the other party will have a right over land and the other party acts to their detriment in reliance on the representation, the owner is estopped in equity from denying the representation.
27
What is a contractual licence?
This is where consideration has passed and you have a contractual right to be on someone’s property, but only subject to restricted activities. This type of licence arises when you buy a cinema ticket, but it can certainly provide greater rights than this, particularly in the context of business occupation.
28
How are residential tenants protected, more so than licensees?
Residential tenants may be protected under either RA 1977 or HA 1988. These Acts limit a landlord’s right to possession.
29
How are business premise tenants protected, more so than licensees?
Under the Landlord and Tenant Act 1954. There is no protection for business licensees.
30
How do you determine whether an occupier is a tenant or a licensee?
To determine whether an occupier is a tenant or a licensee, it is necessary to investigate:
- whether there is a grant of exclusive possession; and
- whether the arrangement falls within one of the exceptional categories.
If there is a grant of exclusive possession and the agreement does not fall within the exceptions, the occupier will hold as a tenant. In all other circumstances, the occupier will hold as a licensee.
31
When will an occupier hold the land as a tenant?
If there is a grant of exclusive possession and the agreement does not fall within the exceptions, the occupier will hold as a tenant. In all other circumstances, the occupier will hold as a licensee.
32
What does the previous case law seem to suggest about establishing exclusive occupation?
This suggests that in relation to residential property it will often be sufficient to establish that the occupier has exclusive occupation.
33
Is a lodger regarded as a tenant?
No, they are a licensee.
34
What is a lodger?
The occupier is a lodger if the landlord provides attendance or services which require the landlord or their servants to exercise unrestricted access to and use of the premises. E.g. delivery of coal, removal of rubbish, delivery of letters and messages, cleaned rooms daily and provided clean linen.
35
How is a joint tenancy established?
PITT - four unities must be present.
Possession
Interest
Title (same document can be signed separate but identical agreements)
Time
36
What rights would an occupier of a room with use of shared facilities have?
In such circumstances, occupiers are likely to have a tenancy over their own room, so long as they have exclusive possession of it and a licence to occupy the remainder. If the agreement falls for protection under RA 1977 or HA 1988 they will also have security of tenure for the whole property under s22 RA 1977 or s3 HA 1988.
37
What will happen if a tenant leaves and the other tenant is required to find a replacement tenant for any room vacated? Where would the rent go?
The new tenant pays rent to the old tenant as a sub-tenant.
38
Does the keeping of a key count as exclusive possession?
No, it is more an issue of why the key was retained in the first place. E.g. a landlord using a key to inspect the state of repair doesn’t infringe on exclusive possession.
39
What is a sham arrangement?
A sham amounts to “acts done or documents executed” which are “intended to give the appearance” of creating legal rights different from those actually granted. E.g. a contract giving non-exclusive possession and no possession between the hours of 10:30am-12:00pm each day, will be struck out.
40
What must be done once it has been established that there is a grant of exclusive possession?
It is then necessary to ensure the arrangement doesn’t fall within one of the exceptions.
41
What are the three exceptions to a lease?
- there is no intention to create legal relations;
- there is a relationship other than landlord and tenant; and
- the grantor had no power to grant a tenancy.
42
Which two situations fall within the exception of ‘no intention to create legal relations’?
Family relationships - Domestic and social arrangements will normally be presumed not to give rise to legal relations. This is rebuttable.
Acts of friendship and generosity - e.g. where the landlord allowed an occupier to remain in possession for compassionate reasons following the death of her mother.
43
What other type of relationship other than landlord and tenant might provide an exception to a lease?
Buyer and seller - possession before completion of a sale should not give rise to a tenancy if the sale fails to go ahead.
Service occupancy - If an employee is given accommodation as part of the terms of employment, it will not amount to a lease.
44
What is the test for whether the accommodation is essential for carrying out the employee’s duties to find out whether there is a tenancy or not?
The test is whether the accommodation is essential for carrying out the employee’s duties. If it is, the employee is a service occupier and has no rights as a tenant. If the occupation is merely convenient for the employee, there will be a tenancy.
45
What kind of situation would be where the grantor had no power to grant a tenancy?
E.g. when a non-proprietary lease is granted, where the grantor has no power to grant the tenancy in the first place.
46
What did the Law Commission suggest that the government should do to lesser the confusion between leases and licences? Who did take it up in the end?
It proposed that the current structure should be replaced with standard form “occupational contracts” governing nearly all occupation agreements.
The Law Commission’s proposed reforms were rejected in England, however the recommendations were accepted in Wales. The Renting Homes (Wales) Act 2016 passed into law in January 2016.
47
What is a fixed-term tenancy?
It is a tenancy that is limited to a certain amount of time, but can be of any duration.
48
When do fixed-term tenancies end?
They terminate automatically on the expiration of the fixed term by the ‘effluxion of time’. However, they can be terminated by either landlord or tenant due to a break clause or a breach of contract.
49
What is ‘the effluxion of time’?
Effluxion of time is the expiration of a lease term due to a natural passing of time rather than from a specific action or event.
50
What is a periodic tenancy?
A periodic tenancy continues automatically from period to period until it is terminated by notice at the end of one period.
51
At common law, how much time is required for the termination of a periodic tenancy?
Typically one full period of notice, but tenancies of six months or more require only six months’ notice.
52
Which notice period will take precedence; a statutory notice period or a common law notice period?
A statutory notice period takes precedence, e.g. Protection from Eviction Act 1977 provides that a periodic tenancy of a dwelling-house requires a minimum of four weeks’ notice.
53
How come a periodic tenancy does not clash with the rule in Lace v Chantler [1944] (e.g. being uncertain)?
A periodic tenancy ‘is saved from being uncertain because each party has power by notice to determine at the end of any period’. The term continues as if both parties had made a new agreement every time it comes to an end and then starts again.
54
What changed about the rule in Lace v Chantler [1944] after reviewing periodic tenancies?
The rule expressed in Lace v Chantler only applies if neither party or only one party has the power to determine.
55
Can a periodic tenancy arise expressly or by implication?
Both. Periodic tenancies can arise either expressly or by implication.
56
How could an implied periodic tenancy arise?
Implied periodic tenancies arise whenever a person goes into possession and then pays rent in reference to a given period.
57
What is a tenancy at will?
A tenancy at will arises when a tenant occupies land with the consent of the owner on the basis that either party can bring the tenancy to an end at any time.
58
Can a tenancy at will arise expressly or by implication?
Both, a tenancy at will can arise expressly or by implication.
59
When the landlord created a tenancy to be sure of being able to regain possession immediately on being granted planning permission for redevelopment, what type of tenancy is this? Express or implied?
This is an express tenancy at will.
60
Why is an express tenancy at will sometimes created over a periodic tenancy?
So that the owner can get their land back quickly, instead of giving a long period of notice to terminate.
61
What kind of tenancy is created when a tenant stays in possession of the land after the termination of an existing tenancy?
An implied tenancy at will.
62
What is the usual scenario for an implied tenancy at will?
Where a tenancy at will arises when a tenant enters into possession under an informal legal lease: for example, for lack of a deed.
63
How could an implied tenancy at will turn into a periodic tenancy?
When an implied tenant at will pays or agrees to pay rent (e.g. at a set period), a periodic tenancy will arise.
64
What is the difference between a tenancy at will and a tenancy at sufferance?
At will requires consent, at sufferance is without the landlord’s consent.
65
What is a tenancy at sufferance?
A tenancy at sufferance arises where a tenant occupies land without the landlord’s consent or despite objection by holding over after the expiration of a lease.
66
Can the tenant gain entry to a property unlawfully and then have a tenancy at sufferance?
No, it is essential that the initial entry was lawful and with consent; on expiration of this initial right to occupy, there can be no agreement as to the tenancy, as the essence of a tenancy at sufferance is that the landlord does not agree to its existence.
67
When can the landlord recover possession of the land and terminate a tenancy of sufferance?
At any time.
68
Does the tenant have any rights in the land in a tenancy at sufferance?
Yes, and can bring an action in trespass or ejectment against third parties.
69
How could a tenant at sufferance become 1. A trespasser, 2. A tenant at will or 3. An owner through adverse possession?
(1) If the landlord requires the tenant to quit, the tenant becomes a trespasser (the tenant may, as with a tenancy at will, have a statutory right to remain in possession).
(2) If the landlord signifies their consent, the tenant becomes a tenant at will and if the tenant then pays or agrees to pay rent, an implied periodic tenancy is created based on calculation of rent or intervals of payment.
(3) A tenant at sufferance who retains possession for the appropriate period without payment of rent may acquire title by adverse possession.
70
What is a tenancy by estoppel?
A lease that exists despite the fact that the person who granted it had no legal right to do so (because, for instance, the landlord holds no estate in the land). Such a tenancy is binding on the landlord and tenant but not on anyone else.
71
What happens to a tenancy by estoppel if the landlord subsequently acquires an interest in the land?
If the landlord subsequently acquires an estate, the estoppel is “fed” and the lease becomes a full legal lease.
72
What is meant by ‘feeds the estoppel’?
If the landlord subsequently acquires an estate, the estoppel is “fed” and the lease becomes a full legal lease.
73
What is a perpetually renewable lease?
A perpetually renewable lease is a lease that can be renewed indefinitely and often includes a renewal provision in every contract on ‘identical terms’ as the last.
74
What did the LPA 1922 (not 1925) change about perpetually renewable leases?
By virtue of s145 and Sch 15 Law of Property Act 1922, any perpetually renewable lease (or contract for such a lease) granted since 1925 takes effect as a 2,000-year lease, determinable only by the tenant. The tenant can end the term by serving 10 days’ notice on prescribed occasions.
75
What is a reversionary lease?
A lease that takes effect at some future time.
76
What is the time limit for reversionary leases?
It must take effect within 21 years or it will be void. The same goes for contracts to create a lease, but it applies to the date of the lease, not the date of the contract.
77
What are the other two leases similar to a lease for life?
A lease determinable on death or on marriage.
78
Why can a lease for life/marriage/death qualify as a lease if it is of an uncertain maximum duration?
By s149(6) LPA 1925, such leases, if granted at a rent or in consideration of a fine, are automatically converted into 90-year leases.
79
How can a lease for life/marriage/death be terminated after the determining event occurring?
On the determining event occurring, the landlord, tenant or any successors could terminate by giving one month’s written notice expiring on one of the quarter days of the lease.
80
If a lease for life is for free, is there a lease?
No, it is a life interest.beneficial interest.
81
What is the difference between a contract for a lease and the grant of a lease?
The contract for the lease is rare, as opposed to a contract for sale, which is always an important part of the sale process. The grant of the lease (also referred to as the tenancy agreement) is what always happens when the lease is transferred to the lessee.
82
What is a contract for a lease?
A contract for a lease is a contract that promises to grant a lease at some future time.
83
What is the difference between how contracts before and after 1989 need to be created?
Prior to 1989: Have to be evidenced in writing (but not actually in writing) (s40 LPA 1925)
Post 1989: Have to be in writing and incorporating all terms (s2 LP(MP)A 1989)
84
What does s2 LP(MP)A 1989 not apply to?
S2 LP(MP)A 1989 says that all contracts have to be in writing and incorporating all terms, but this doesn’t apply to leases of less than three years.
85
What does s52(1) LA 1925 state that legal leases must do in order to be legal?
To take effect at law a lease must be created by deed.
86
How will an instrument be taken as a deed according to s1(2&3) LP(MP)A 1989?
s1(2) LP(MP)A 1989 an instrument will only be a deed if it makes clear on its face that it is intended to be a deed and it is validly executed. To be validly executed it must be signed, witnessed and delivered (see further s1(3) LP(MP)A 1989).
87
What are the four things that are required in order to create a legal lease by parol (verbally)?
it is for a term of three years or less; and
it takes effect in possession; and
it is at the best rent reasonably obtainable; and
no fine (i.e. premium or lump sum) is payable by the tenant to the landlord for the grant.
88
What does ‘by parol’ mean?
Verbally.
89
If the formalities of making a lease are not observed, what two kinds of tenancies could arise?
An implied periodic tenancy or an equitable lease.
90
When would a common law periodic tenancy arise?
If a tenant goes into possession and pays rent, a common law periodic tenancy may be created by implication.
91
When might an equitable lease arise?
If a contract for a lease preceded the grant, the prospective tenant might be able to enforce the original contract in equity. In order for the tenant to acquire an equitable lease, the original contract must be enforceable, so it must comply with the following requirements: any contracts granted before 1989 must be evidenced in writing and any contracts granted on or after 1989 must be in writing. Also, the contract will only be enforceable if the tenant would be able to seek the equitable remedy of specific performance.
92
Explain Walsh v Lonsdale [1882] and whether an equitable lease or an implied periodic tenancy will prevail?
In Walsh v Lonsdale [1882], the defendant landlord granted the tenant a seven-year lease in writing which stipulated that rent was to be paid yearly in advance. The tenant went into occupation and started paying rent quarterly in arrears, not advance. The landlord, therefore, distrained (seized) the tenant’s chattels (personal property) to make good the claimed arrears of rent. The tenant brought an action claiming wrongful distress on the basis that he occupied by virtue of a common law periodic tenancy rather than under the agreement, which was void for lack of deed. The Court of Appeal held that he held “under an agreement for a lease” as “equity rules prevail”.
Thus the terms of an equitable lease will take precedence over any implied periodic tenancy.
93
Give 4 reasons why an equitable lease is not as good as a legal lease?
1. An equitable lease depends on the discretionary remedy of specific performance being awarded.
2. ‘The usual covenants’ still apply, e.g. obliged to repair, forfeiture of lease if unpaid rent.
3. On the assignment of the tenant’s rights, the burden of any leasehold covenants will not run with the land.
4. An equitable lease is categorised as an estate contract and it must be protected.
94
How is an equitable lease protected in registered and unregistered land?
In unregistered land, it must be registered as a Class C(iv) land charge. If title to the land is registered, it should be protected by means of a notice on the charges register.
95
Are leases that are 7 years or less able to override a registered disposition?
Although most leases granted for a term of seven years or less are interests which will override a registered disposition (para 1 Sch 3 Land Registration Act 2002 (LRA 2002)), this does not include an agreement for a lease (nor, therefore, an equitable lease) because as there has not yet been a deed, there is no grant. If, however, the tenant has gone into occupation of the premises, the equitable lease will override a registered disposition under para 2 Sch 3 LRA 2002.
96
Is a legal lease of registered land for a term of seven years or less a registrable interest?
No, it is not. But it will bind the freehold or superior leasehold title because it is an overriding interest under para 1 Sch 3 LRA 2002.
97
How is a legal lease of unregistered land protected?
A lease which is granted out of unregistered land and which is for more than seven years will trigger the need for first registration within two months of the grant (s4 LRA 2002). A lease which is granted out of unregistered land and which is for more than seven years will trigger the need for first registration within two months of the grant (s4 LRA 2002).
98
How is an equitable lease of registered land protected?
An equitable lease of registered land should be protected by the tenant registering it as a notice on the charges register of their landlord’s title in accordance with s32 LRA 2002. It may be protected as an overriding interest under para 2 Sch 3 LPA 2002 if the tenant is in actual occupation as long as certain conditions are met.
99
How is an equitable lease of unregistered land protected?
This must be registered as a Class C(iv) land charge to be binding (see s198 LPA 1925). If not, it is void against a purchaser of the legal estate for money or money’s worth (s4 Land Charges Act 1972).
