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SQE Property Practice > 10.2 LL Remedies for Breach of L/H Covenants > Flashcards

10.2 LL Remedies for Breach of L/H Covenants Flashcards

1
Q

What are the 8 remedies available to the LL?

A
  1. Damages
  2. Action in Debt
  3. Guarantor and Rent Deposit
  4. CRAR (Commercial Rent Arrears Recovery)
  5. Forfeiture
  6. Jervis v Harris Clause (Self Help)
  7. Specific Performance (equitable, discretionary)
  8. Injunction (equitable, discretionary)
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2
Q

What must be served on a guarantor if the LL is seeking to recover for T’s breach?

A

S.17 notice.

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3
Q

In order for T to serve a counternotice to the LL’s S.146 notice, the lease’s Term must fulfil what criteria?

A

For a term of 7 years or more, and have 3 or more years left to run

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4
Q

If the LL notices actions of T which are preparations to breach the lease, what can the LL do?

A

Seek an injunction.

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5
Q

For T’s breach of rent covenant, does the LL need to serve a S.146 notice for forfeiture?

A

No. LL can proceed straight to peaceable re-entry or apply to the court for forfeiture,

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6
Q

When MUST a LL proceed straight to the court for an order for forfeiture, instead of peaceable re-entry?

A

If whole/part of the premises is resi.

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7
Q

What type of forfeiture does the following describe: LL arranging for a bailiff to change locks, put notice on door and not allow T or others to enter?

A

Peaceable re-entry

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8
Q

Why is forfeiture by peaceable re-entry often effective?

A

It can cause embarrassment to T and encourage T to pay debt.

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9
Q

What 2 reasons might T have for challenging LL’s peaceable re-entry?

A

-Unlawfully carried out OR
-T’s possessions have been lost, damaged or stolen.

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10
Q

When is a LL not required to serve a S.146 notice on T?
How soon can it forfeit the lease?

A

When T has breached a RENT covenant.
LL can forfeit as soon as the lease allows.

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11
Q

What must a S.146 notice include?

A

Details of alleged breach and reasonable opportunity for T to remedy. (PLUS in the case of repair breach, informs T of right to serve a counter-notice).

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12
Q

What does the following describe?

-Unequivocal act from LL to recognise continuing lease; AND
-LL communicates act to T; AND
-LL has knowledge of T’s breach.

A

Implied waiver of LL’s right to forfeiture.

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13
Q

A CONTINUING BREACH is where each day the breach continues….

A

…LL regains the fight to forfeirure.

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14
Q

A ‘ONCE AND FOR ALL BREACH’ is where once LL waives its right…

A

…it cannot regain the right to forfeiture.

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15
Q

Failure to comply with the following are 3 CONTINUING BREACHES:

A
  1. Repair covenant
  2. User covenant
  3. Insurance obligation
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16
Q

The following are 3 ‘once and for all’ breaches:

A
  1. Non-payment of rent
  2. Unlawful assignment/underletting
  3. Insolvency event
17
Q

When can T apply for relief from forfeiture?

A

As soon as LL starts forfeiture or serves S.146 notice.

18
Q

If LL applies for forfeiture through a court order, when must T apply for relief?

A

Before the court order is actually made.

19
Q

If LL effects forfeiture by peaceable re-entry, when must T apply for relief?

A

After LL exercises right with within a ‘reasonable’ timeframe.

20
Q

What happens if T is successful in applying for relief from forfeiture?

A

Lease is restored as if forfeiture never took place.

21
Q

How else can T get relief from forfeiture if it relates to non-payment of rent?

A

By T settling arrears and LL’s costs.

22
Q

Which two other parties can seek relief from forfeiture?

A
  1. UT
  2. Mortgagee (lender)
23
Q

If a UT seeks relief from forfeiture, they might become what?

A

The direct T of the LL.

24
Q

If mortgagee (lender) seeks relief from forfeiture, they may acquire what?

A

The leasehold interest.

25
Q

Relief from forfeiture is a d____________ r_____.

A

Discretionary remedy

26
Q

T can serve a counter-notice to LL’s S.146 notice for forfeiture for breach of repair, as long as what is satisfied?

A

Lease 7yrs+ with at least 3 years left to run

27
Q

If T serves a counter-notice for forfeiture what must the LL do in order to be allowed to proceed with forfeiture?

A

Seek leave (permission) from court

28
Q

When seeking leave from court after T serves a counter-notice, LL must prove the breach needs to be remedied on the following grounds:

  1. Prevent s__________ d_________ of the reversion value
  2. To comply with l__
  3. Protect i________ of o________ of other parts of the property
  4. To avoid greater f_____ e_______
  5. Or other s______ c__________ render it j___ and e________ to grant leave
A
  1. Prevent substantial diminution of the reversion value
  2. To comply with law
  3. Protect interests of occupiers of other parts of the property
  4. To avoid greater future expense
  5. Or other special circumstances render it just and equitable to grant leave
29
Q

The landlord will need to serve T a S.146 notice for which 2 remedies?

A
  1. Forfeiture for other breaches (not unpaid rent)
  2. Damages for breach of repair covenant
30
Q

How are damages for breach of repair covenant limited?

A

Damages re limited by the reduction in the value of the reversion caused by the breach of repair.

31
Q

What is often the best remedy for a breach of repair covenant and why?

A

Self-help clause (Jervis v Harris) as it allows LL to enter the premises to make repairs, recovering the full cost from T as a DEBT (not limited). This is quicker and cheaper than court.

32
Q

For remedying a breach of repair, what does LL not need to serve on T when using a self-help clause?

A
33
Q

Self-help Jervis v Harris can only be used if…

A

There is an express clause in the lease

34
Q

CRAR (Commercial Rent Arrears Recovery) is only available to recover what from T?

A

Principle rent.

35
Q

How many clear days’ notice is required before a certified enforcement agent can enter the premises?

A

7 clear days’ notice (inc. Saturdays but not BHs/Sun)

36
Q

What must the CRAR notice include?

A

debt amount
how to repay
enforcement power
agent details

37
Q

What happens if the CRAR notice expires?

A

Agent can enter premises and take control of good to the debt value.

38
Q

Can T’s seized goods be sold straight away, once agent enters premises during CRAR?

A

No, LL must serve a further 7 days’ clear notice before selling goods.

39
Q

Which are the discretionary remedies?

A

Specific performance
Injunction
(+ Relief from forfeiture)

SQE Property Practice (16 decks)

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