Landlord and Tenant Flashcards
1
Q
What are the S30 grounds?
A
a. A breach of repairing covenant
b. Persistent delays in paying rent
c. Other substantial breach
d. Provide suitable alternative accommodation
e. Uneconomic subdivision (compensation payable)
f. Demolition or reconstruction (redevelopment) (compensation payable)
g. Owner occupation (compensation payable) - Landlord must have owned property for at least 5 years
2
Q
Which of the S30 grounds are mandatory and which are discretionary?
A
- A-E are mandatory
- F-G are discretionary with compensation payable
- Compensation payable under S38 of the Act - 1x RV for at least 7 years of occupation; 2x RV if more than 14 years. RV taken at the date of the notice
3
Q
Which sections of the Landlord and Tenant Act do you need to be aware of?
A
- Sections 20-40, including:
- S24 - Continuation of a protected tenancy (holding over)
- S24A - interim rent - has to be made within 6 months of the termination of the tenancy
- S25 - Landlord terminating a lease (hostile, non-hostile)
- S26 - Tenant requesting a new tenancy
- S27 - Tenant’s notice to terminate a tenancy
- S32-S35 - Terms of a new lease
- S34 - rental valuation
- S40 - request for information from either party
- Either party can serve during the last 2 years of a lease
- No limit on the number of notices
- S44 - competent Landlord
- The person whom a notice should be served on
- Must be freeholder or superior tenant with at least 14 months remaining on the lease
4
Q
What are the usual assumptions and disregards in S34 of the Act?
A
- Assumptions:
- Regard to the terms of the lease
- A lease between a willing landlord and a willing tenant
- Premises has vacant possession
- Any effect of the Landlord and Tenant Covenants Act
- Disregards:
- The occupation of the tenant
- Any goodwill
- Any improvements (less than 21 years)
- Any value attributed to licences
5
Q
What is meant by “Contracting-Out of the Act”?
A
- Adhering to the provision of S38A of the L&T Act 1954
- It excludes sections 24-28
- A “health warning” is required for anyone contracting out
- A statutory declaration needs to be signed at least 14 days prior to lease commencement
- If less than 14 days, a simple declaration will be made in front of an independent solicitor
- Commands a lower rental value - ask me why
6
Q
What’s a Calderbank offer?
A
- A genuine offer to settle
- Marked “Without Prejudice Save as to Costs”
- It is used as an offer to settle and can be disclosed before Court and Third Party determination to prejudice costs against the other party
- Contains the property, the nature of the settlement (RR or LR), details of the offer, a time period for acceptance (usually 21 days)
- Following this, it lists the ADR for a RR or that the matter will continue to proceed to Court for a LR
- It draws the attention of the Independent Expert, Arbitrator, Court to the award for costs and that the other party has made a genuine offer to settle
7
Q
What is the leading case for Calderbank offers?
A
- Calderbank vs Calderbank 1975
8
Q
What’s the difference between an Independent Expert and an Arbitrator?
A
- Arbitrators act within a set framework under the Arbitration Act 1996, Independent Expert’s can rely on their own investigations
- Arbitrators have power of disclosure whereas Experts rely on their own findings
- Arbitrator outcome called an award, Experts a Determination
- Arbitrator has power over all costs, Expert only has power of their own costs
- Arbitrator immune from negligence, Expert can be liable for damages but not negligence
- Arbitrator appeal is limited and only at the High Court on a point of law or serious irregularity. No right of appeal against an Expert, limited circumstances can allow the Court to set aside the decision made on a misrepresentation
9
Q
What is the difference between a lease and a licence?
A
- Leading case is Street v Mountford 1985
- A lease provides the occupier an estate in the relevant land, a licence is a permission to use the land
- A lease can be assigned. A licence is a personal right and cannot be assigned
- A lease cannot be terminated until it expires (except for a break clause or agreement to surrender), a licence can usually be revoked at any time
- If a lease is longer than 3 years, the terms must be in writing, signed and registered as a Deed
- Full requirements for a lease:
- Exclusive occupation
- Payment of a rent
- Duration for a specified term
10
Q
Can you tell me about the guidance you read on acting as an Expert Witness?
A
- RICS Practice Statement - Surveyors Acting as Expert Witnesses 4th Edition, August 2020
- The Expert’s overriding duty is to the judicial or quasi-judicial body, not the client’s or instructing party’s paying the fees
- Incentive or contingency fees are inappropriate and can be viewed as negligent
- A surveyor should only accept work as an Expert if they have the appropriate and relevant knowledge and expertise to act in this manner
- Rent review clauses, for example, will stipulate how much experience an Expert should have in order to act as an Expert
- “Hot Tubbing” is where more than 1 Expert is sworn in and are given the opportunity to ask each other questions
- When acting as an Advocate, your duty is to the client you represent
- You must have the relevant knowledge and expertise to act in this capacity
- You may act as an Expert-Advocate if the court allows to do so, this is usually in the capacity of public representation
11
Q
Can you tell me the difference between an Arbitrator and an Expert
A
- Format for Arbitrators set by the Arbitration Act 1996 where Expert’s can use their own format as they see fit
- Arbitrators have power of disclosure and Expert can rely on their own investigations outside of the arguments put forward
- There is limited rights for appeal, only on a point of law, serious irregularity or omission or the jurisdiction of the arbitrator
- There is no right of appeal for an expert, the case can be set aside on a misrepresentation
- An arbitrator is not liable for negligence and cannot be sued
- An expert can be liable for damages by being sued
- The outcome for Arbitration is called an Award and for an Expert is called a Determination
- Arbitrator’s have power over all costs. Expert have power over their own costs and can make a recommendation for the award of the party’s costs
12
Q
Can you tell me what a TAW is and when you’d use it?
A
- Form of licence but with no term
- The occupier pays a daily occupation fee
- The agreement can be terminated by one day’s notice
- Used for allowing a tenant entry for fit-out works or when a contracted-out lease has expired
- We currently occupy a property in West Malling on a TAW whilst negotiations are ongoing for a renewal
- I issued a TAW when the lease at Andover expired to regulate the position
- Otherwise this risks a claim for security of tenure
13
Q
Can you tell me forms of ADR when negotiations break down during a lease renewal?
A
- PACT - professional arbitration on court terms. Both parties have to be agreeable to this
- Court Application, also used for protecting security of tenure when a S29B extension of statutory end date is not agreed
14
Q
Can you tell me about forms of ADR for a rent review dispute?
A
- Arbitrator
- Independent Expert
- Depends on the terms of the lease
- Application fee is £425
- Either party can make an application
- Timing depends on the terms of the lease, usually 3 months before or any time after the review date
15
Q
Can you tell me of any interesting case law updates?
A
- PCE Investors Ltd v Cancer Research
- Break case
- The tenant served a break notice well in advance to bring the lease to an end on an office. One of conditions was to pay all rents on the basis charged
- The tenant paid an apportioned rent to include the break date despite the demand for the full quarter
- The judge ruled the Landlord held no duty to point out the error and the tenant should have adhered to the full terms of the lease
- Clipper Logistics v Scottish Equitable PLC
- Green lease clauses
- The Landlord attempted to insert a number of green lease clauses in the renewal lease
- The court upheld the O’May principle of introducing new clauses must be reasonable modernisation of the existing lease
