11: Enforcing Covenants and Remedies Flashcards
(151 cards)
1
Q
What is a leasehold covenant?
A
Promises made by the landlord and tenants to each other. These are different to restrictive covenants. E.g. to pay rent, be responsible for maintenance.
2
Q
Which piece of legislation governs leasehold covenants?
A
Landlord and Tenant (Covenants) Act 1995.
3
Q
What is the difference between an ‘old’ and a ‘new’ lease?
A
Pre 1996: Old leases
Post 1996: New leases
Due to the Landlord and Tenant (Covenants) Act 1995.
4
Q
When did the LT(C)A 1995 come into force?
A
From 1996 onwards, leases were then referred to from 1996 as a ‘new’ lease.
5
Q
What is ‘privity of contract’?
A
Where the landlord and tenant have agreed to a contract with each other - if one breaks a contractual term, they may be sued by the other.
6
Q
What is ‘privity of estate’?
A
Where a landlord and tenant relationship exists between them. Privity of estate refers to the legal relationship that two parties bear when their estates constitute one estate in law.
7
Q
Can a landlord sue the original tenant if the assignee has not paid their rent in an old lease?
A
Yes, because there is privity of contract between the original tenant and the original landlord, which makes the tenant liable for the defaults of assignees.
8
Q
Can a landlord sue the original tenant if the assignee has not paid their rent in a new lease?
A
No, in respect for leases granted after 1 January 1996, the previous rules, which made the original tenant liable for the defaults of assignees, cease to apply.
9
Q
Which 3 pairs of people are bound by privity of contract?
A
Landlord and tenants
Tenants and assignees
Landlords and Reversioners
10
Q
How are landlord and assignees connected?
A
Through common law, Spencer’s Case [1583], the burden of covenants are attached to the leasehold estate and so bind subsequent assignees.
11
Q
What are the four criteria for assignees to be liable for the benefit and burden of covenants via Spencer’s Case [1583]?
A
Legal lease (fulfilling requirements)
Assigned by deed
Privity of estate (relationship over same land)
Touches and concerns the land
12
Q
Does Spencer’s Case [1583] apply to equitable leases?
A
No, it does not apply to equitable leases, only legal leases.
13
Q
Is there privity of estate between landlord or tenant assignees?
A
Yes, because the assignee merely ‘steps into the shoes’ of the landlord or tenant, so assumes all their rights and obligations. There is no privity of contract between L and A1, but there is privity of estate.
14
Q
What are the three criteria for when the covenant ‘touches and concerns the land’?
A
A covenant touches and concerns when it:
only benefits the landlord when they hold the reversion.
affects the nature, quality and mode of user or value of land.
is not expressed to be personal.
15
Q
For old leases pre 1996, how is the fact that tenants were still liable for non-payment from their assignees mitigated?
A
Via implied rights of indemnity via either:
s77 LPA 1925
Moule v Garrett [1872]
16
Q
What does s77 Law of Property Act 1925 provide for?
A
For old leases pre 1996, it provides that any assignment of a lease for valuable consideration shall be deemed to include an indemnity in favour of the assignor by the assignee. It therefore can create a chain of indemnity.
17
Q
Does s77 LPA 1925 apply to both the assignment and reversion of the lease?
A
No, s77 LPA 1925 (this method of indemnity) applies only to an assignment of the lease, not the reversion.
18
Q
What does Moule v Garrett [1872] provide for?
A
It provides the quasi-contractual right of indemnification, meaning that if the tenant T had assigned to A1 and A1 then assigned to A2, the tenant T, if sued for non-payment of rent by the landlord, could claim directly against A2.
19
Q
How are reversioners and tenants connected?
A
Through s141 and s142 LPA 1925.
20
Q
What is the difference between s141 and s142 LPA 1925?
A
s141: Reversioner takes the benefit of the tenant’s obligations by virtue of s141.
s142: Reversioner suffers the burden of the landlord’s obligations by virtue of s142.
21
Q
Which condition must the covenants meet in s141 and s142 LPA 1925 in order for a reversioner to take the benefit and burden?
A
The covenants must have reference to the subject-matter of a lease.
22
Q
What does the covenant needing to ‘reference the subject-matter of a lease’ mean?
A
It is the same as ‘touch and concern the land’, so it must be related directly to the land/property.
23
Q
Can reversioners sue for past breaches in old leases?
A
Yes, reversioners can sue for past breaches, even if they did not hold the reversion at the time of the breach.
24
Q
In the picture below, how is there a relationship between R and A3?
A
There is no contractual relationship between R and A3. The various leasehold covenants will be mutually binding, however, if the four conditions in Spencer’s Case are satisfied (so the leasehold covenants run to A3) and the benefit and burden of the leasehold covenants have run to R under ss141 and 142 LPA 1925
25
In the picture below pre-2000, can L sue S for non-payment of rent? What would L’s remedy be?
L cannot directly sue S for non-payment of rent, because there is no privity of contract or estate (as there is no landlord-tenant relationship between them).
Remedy: L’s primary remedy would be against T because there is privity of contract between L and T. T would then recover the rent from S.
26
In the picture below pre-2000, can R sue S for non-payment of rent? What would R’s remedy be?
R cannot sue S for non-payment as there is no privity of contract or privity of estate (no landlord-tenant relationship between them).
Remedy: R’s primary remedy would be to sue L through s141 LPA 1925.
27
In the picture below pre-2000, can R sue S for non-payment of rent? What would R’s remedy be?
R cannot sue S as there is no privity of contract or estate (no landlord-tenant relationship between them).
Remedy: R’s primary remedy would be against A2 if the conditions in Spencer’s Case are met and through s141. A2 could then recover the rent from S through privity of contract.
28
How are reversioners and assignees connected?
The assignee has to make sure Spencer’s Case is satisfied so the covenant is mutually binding and then can use s141/2 LPA 1925 for benefit and burden of the covenant.
29
How are sub-tenants connected to the tenant?
Sub-tenants only have privity of contract between themselves and the tenant.
30
Can covenants mutually bind sub-tenants?
Covenants cannot mutually bind sub-tenants, unless Contracts (Rights of Third Parties) Act 1999 applies (post May 2000) or it is a restrictive covenant that runs with the land, binding everyone except a bone fide purchaser.
31
When did Contracts (Rights of Third Parties) Act 1999 come into force?
May 2000.
32
How did Contracts (Rights of Third Parties) Act 1999 affect old leases?
Contracts (Rights of Third Parties) Act 1999 allowed a third party to enforce a term in a contract if the contract allows it or the term claims to confer a benefit on them. Only applies post 2000.
33
Why can restrictive covenants bind sub-tenants?
Because restrictive covenants that run with the land, therefore binds everyone but the bone fide purchaser for value of a legal estate without notice of the covenant. So, if the sub-tenant has notice, it will bind them. (Tulk v Moxhay [1848]).
34
Apart from restrictive covenants, what other method could a landlord use in order to take direct action against a sub-tenant of a pre-May 2000 lease?
Right of re-entry (forfeiture clause). A right of re-entry attached to a legal lease is itself a legal interest in land, by virtue of s1(2)(e) LPA 1925: it binds the world. The landlord can, therefore, enforce forfeiture against the sub-tenant.
35
Which sections of the LT(C)A 1995 cover old leases (pre-1996)?
s17 - limits original tenant’s liability for fixed charges + landlord must service notice within 6 months
s18 - if covenant has changed since tenant assigned, tenant is not liable
s19 - allows an overriding lease between the landlord and the current tenant.
36
What does s17 LT(C)A 1995 cover?
It limits the liability of tenants in old leases (pre-1996) in respect of fixed charges (e.g. overdue rent, service charges). s17(2) outlines that the (original) tenant will not be liable unless the landlord serves a notice within six months of the due date.
37
What does s18 LT(C)A 1995 cover?
If the fixed charge covenant (e.g. rent) has changed since the original tenant’s assigned the lease to someone else, they will not be liable at all.
38
What does s19 LT(C)A 1995 cover?
Overriding leases can arise when the former tenant has made full payment in respect of their liability (the defaulting tenant’s debts).
39
What is an overriding lease?
When an original tenant has paid all the defaulting tenant’s debts to the landlord, they can apply for an overriding lease, which puts them in the position of landlord to the defaulting assignee. It gives the former tenant control over the defaulting tenant.
40
What are the three things that overriding leases allow the former tenant to do?
They give the former tenant control over the defaulting tenant and allows them to:
sue the defaulting tenant in the future for outstanding rent
Sue for damages for breach of covenant
Regain possession of the property for which they are liable through forfeiture
41
What is the procedure for obtaining an overriding lease?
The former tenant must write to the landlord with a request for an overriding lease, referencing payment that gives rise to the right within 12 months of the payment date.
42
For new leases (1996 onwards), what did LT(C)A 1995 do for the benefit and burden of all landlord and tenant covenants?
The benefit and burden of all landlord and tenant covenants (whether express, implied or imposed by law) will now automatically pass to an assignee of the lease or the reversion unless the covenant is expressed to be personal.
43
Do the new rules around the burden of the tenant’s covenants running with the land (from 1996 onwards) from the LT(C)A 1995 stretch to equitable leases?
Yes, the benefit and burden of all landlord and tenant covenants will now automatically pass to an assignee of an equitable lease. This is different to the problem in the past where the burden of the tenant’s covenants did not run if the lease was equitable.
44
Does a personal covenant need to be explicitly identified as being personal in nature?
In order to be a personal covenant, the covenant does not have to be explicitly identified as being personal in nature; words used in the lease which convey an intention that the covenant is personal in nature are sufficient.
45
What is the rule in s5 LT(C)A 1995?
That a tenant under a new lease will be liable in respect of leasehold covenants only while the lease is vested in them. Where a tenant assigns the whole of the premises, they are released from the tenant covenants and cease to be entitled to the landlord’s covenants.
46
If a tenant assigns part of the premises post 1996, are they released from those covenants that relate to that part?
Yes, they are.
47
Where are ‘excluded assignments’ found in LT(C)A 1995 and how are they defined?
s11 - assignments which arise in breach of covenant or by operation of law.
48
What are the assignments that are excluded from the rule in s5 LT(C)A 1995?
Assignments by operation of law, e.g. assignment on the death of a joint tenant of the legal estate, or assignment to a trustee when the tenant becomes bankrupt.
49
What is the reason behind s11 LT(C)A 1995 and excluded assignments?
They don’t allow the tenant to release themselves from liability until the next assignment (provided it is not excluded). This is because the assignee may not have voluntarily agreed to be liable for all the covenants.
50
What does an ‘AGA’ stand for?
An authorised guarantee agreement.
51
What is the definition of an authorised guarantee agreement?
Under s16 LT(C)A 1995, an AGA is where the tenant guarantees the performance of the relevant covenants by the assignee.
52
Why do authorised guarantee agreements exist?
It is a way to protect the landlord for an assignee who does not fulfil the covenants that were passed on by the tenant.
53
When would an authorised guarantee agreement usually be entered into?
When the tenant needs consent from the landlord to assign - they can make it a condition of their consent. If the tenant does not need consent, the landlord cannot impose an AGA.
54
When would an authorised guarantee agreement come to an end?
As soon as the assignee whose name it was attributed to assigns the lease again. It only is in play whilst that assignee is in possession.
55
What three things can an authorised guarantee agreement impose on a tenant?
1. Liability as the sole debtor of the assignee’s obligations
2. Liability as guarantor of the assignee
3. If the tenancy is disclaimed (if the assignee becomes bankrupt), they would have to take on a new lease for the duration of the term.
56
What are the rules around liability of fixed charges and overriding leases for new leases (1996 onwards)?
The same as the rules from LT(C)A 1995 for existing leases. (Must be given notice within 6 months + overriding leases can be granted to take over the landlord responsibility).
57
What does LT(C)A 1995 state about suing for breach prior to the assignment? + exception
s23 reverses Re King [1963] - an assignee of the reversion cannot sue for any breach that occurred before the assignment except for forfeiture proceedings, which can be brought for pre-assignment breaches.
58
Does LT(C)A 1995 provide a provision to allow landlords to be released automatically from their covenants?
No, it does not.
59
What is the process for a landlord who wants to release themselves from their covenants (via assignment of the reversion)?
They must serve notice on the tenant 4 weeks before the assignment of the freehold reversion. If the tenant objects in that 4 week period, the landlord must apply to the County Court for a release. This is to give the tenant some protection.
60
Is release from a covenant retrospective?
No it is not.
61
Can a head landlord enforce a negative covenant in a lease against a sub-tenant?
Yes, due to s3(5), which provides that a negative covenant in a lease may be enforced not just against an assignee but against any owner or occupier of any demised premises to which the covenant relates.
62
What needs to be done in order to end a fixed term tenancy?
Nothing needs to be done - it will end by effluxion of time.
63
Does notice to quit (leave) a tenancy need to be in writing?
No, it does not.
64
What is the definition of a break clause?
A break clause allows a party to terminate a tenancy at a specific point before the end of the fixed period.
65
What happens if the break clause has the incorrect date on it? Will it be upheld?
Yes, as long as the break clause makes it quite clear what was intended by the person who served the notice, it will be valid even though it states the wrong date for termination.
66
Can a tenant sue a landlord for rent that has been paid after the tenancy has ended between two payment dates?
No, they cannot. ‘rent for the full quarter was still payable by the tenant even though the term of the lease had ended before the end of that period.’
67
How do periodic tenancies end?
A periodic tenancy is ended by either landlord or tenant serving a notice to quit on the other.
68
Will express terms or common law terms take precedence in a notice period?
Express terms will also take precedence over common law terms. If there is a written notice period, it will take precedence.
69
How long must an implied notice period be?
One full period.Therefore, a weekly periodic tenancy requires one week’s notice, a monthly periodic tenancy requires one month’s notice, etc. Six months is max.
70
If the tenancy is a residential tenancy, what does s5(1) PEA 1977 provide for?
It requires that a minimum of four weeks’ notice must be given by either the landlord or the tenant.
71
At what time of day does the notice to quit expire?
The notice to quit must expire at midnight the day before the anniversary of the term of the tenancy. However, the courts are flexible and allow a notice to quit to be valid as long as it either expires on the same day on which the tenancy commenced or the day before
72
When a month’s notice is required, is it a calendar month, or 28 days?
It is a full calendar month, e.g. 1st April to 30th April.
73
Can a single joint tenant under a periodic tenancy bring the lease to an end by themselves, or must there be confirmation from all joint tenants?
A single joint tenant under a periodic tenancy can bring the lease to an end by giving the correct notice to quit and that such notice will bind both parties. There is no duty to consult a co-tenant about the service of a notice to quit.
74
Where there is a sub-tenancy and notice to quit is given on the head tenancy, will the notice also end the sub-tenancy?
Yes, it will.
75
What are the alternative ways to terminate a fixed-term tenancy when there is no break clause?
Surrender or merger.
76
What does ‘surrender’ mean?
Surrender is when the landlord/tenant/both commits an unequivocal act showing intention to end the lease, which then makes it inequitable for the other to assert that the tenancy does still exist, just because the due formalities have not been observed.
77
What is an example of an ‘unequivocal’ act in terms of a tenant ‘surrendering’ the tenancy?
Where the tenant gives up possession of the premises and the landlord accepts it by finding a new tenant.
78
If the landlord enters possession or uses it for their own benefit, will that be seen as a surrender of the lease?
Yes, it will. It will be regarded as the landlord taking back possession and wil give rise to a surrender of the lease.
79
What is a ‘merger’?
When the tenancy mergers from a landlord-tenant relationship to a single owner, e.g. where the tenant acquires the landlord’s reversion or a third party acquires both the tenancy and the reversion.
80
Can there be a merger if the landlord’s estate is legal and the tenant’s estate is equitable?
No, for there to be a merger, the landlord’s and tenant’s estates must be either both legal or both equitable.
81
How are surrender and merger different?
They are opposites - surrender is where one or both parties step out of a lease with an unequivocal act. Merger is where one party (or a third party) takes the whole of the lease for themselves.
82
Is there an equitable presumption for or against mergers?
There is an equitable presumption against merger if there is a benefit to keeping the two interests separate.
83
What is a disclaimer?
Only applicable in insolvency situations, a disclaimer provides that a tenant’s trustee in bankruptcy who has been given an onerous lease can disclaim that lease. That means the lease comes to an end.
84
What is enlargement?
When a lease can be enlarged and converted into a freehold fee simple with certain conditions, e.g. must be over 200 years left on lease, original term must be over 300 years.
85
What is forfeiture?
Forfeiture is a right of re-entry, which allows the landlord to terminate the tenancy for breach of covenant.
86
Will a right of re-entry/forfeiture be implied in the lease?
No, it will never be implied and must always be reserved/expressed in a contract.
87
What are the two conditions under which a landlord will be able to terminate the lease early by means of a right of re-entry?
The lease must have an express clause reserving the right of re-entry
The lease was expressly stated to be conditional on the performance of certain obligations (covenants).
88
What are the two ways in which a landlord can exercise their right of forfeiture?
By peaceful re-entry
By court order
89
What does ‘peaceful re-entry’ mean in the context of forfeiture?
Peaceable re-entry means that the landlord physically re-enters the premises and takes possession.
90
Can ‘peaceful re-entry’ be used in both residential and commercial properties?
No, only unoccupied business premises. The landlord could be charged with a criminal offence if they try to peacefully re-enter a residential home.
91
What does ‘peaceful’ mean in ‘peaceful re-entry’?
It means there cannot be any violence threatened against someone who is physically on the premises at the time who is opposed to the entry.
92
What should happen before a landlord seeks a court order for forfeiture for non-payment of rent?
The landlord should make a formal demand for rent, outlining the time and place the rent is due. However, this is not always required, especially if the rent is more than half a year’s rent and there aren’t enough chattels on the property to cover the arrears.
93
In which courts can a landlord seek a court order for forfeiture for non-payment of rent?
County Court (most claims will be issued here)
High Court
94
Are service charges or insurance premiums included in the definition of rent for forfeiture for non-payment of rent?
Service charges and insurance premiums do not strictly fall with the legal definition of rent but will be treated as rent for the purpose of forfeiture if they are stated to be reserved as rent in the lease.
95
Can the tenant claim relief from forfeiture?
Yes, the tenant has the right to claim relief from forfeiture.
96
In which 3 ways might a tenant claim relief from forfeiture in the County Court?
They can:
Pay all rent in arrears at least 5 days before the hearing (BEFORE)
Pay all rent in arrears within 4 weeks of the possession order (AFTER ORDER)
Make an application for relief within 6 months of the landlord obtaining possession. (AFTER POSSESSION)
For all, it is equitable to do so.
97
In which 2 ways might a tenant claim relief from forfeiture in the High Court?
They can:
Pay all rent in arrears before the hearing and apply to stay proceedings if they are at least 6 months in arrears. (BEFORE)
Make an application for relief within 6 months of the court granting possession to the landlord and pay all rent in arrears. (AFTER ORDER)
For all, it is equitable to do so.
98
Which two pieces of legislation governs forfeiture for non-payment of rent?
Common Law Procedure Act 1852 (CLPA 1852) - for formal demands and high court relief
County Courts Act 1984 (CCA 1984) - for county court relief
99
Can the court grant relief if the landlord has taken the property by peaceful re-entry?
Yes, the court still has a discretionary power to grant relief to the tenant provided that the tenant pays the rent due and the landlord’s costs and it is just and equitable to do so.
100
What is the name of the notice that is required before proceedings of forfeiture for breaches other than rent?
A s146 notice.
101
What is a s146 notice and which part of legislation does it come from?
A s146 notice (from LPA 1925) is a notice served on the tenant by the landlord showing their intention to begin forfeiture on breaches other than rent.
102
What does the s146 notice have to include?
It must specify the breach complained of, require it to be remedied if possible and require the tenant to pay compensation if the landlord wishes it,
103
Who must the s146 notice be served on?
The current tenant, so if the lease has been assigned, it but be served on the assignee.
104
What happens if the landlord serves a s146 notice on the original tenant and not the assignee?
It will be void.
105
What will happen if there are errors in the s146 notice?
If they are minor errors, they will not make the notice void.
106
What is a ‘long lease’?
A lease that has been granted for a term exceeding 21 years.
107
Can a landlord serve a s146 notice on a tenant with a long lease?
No, unless the tenant has admitted to the breach or the First-tier Tribunal has determined that there has been a breach.
108
How long must a tenant be given to remedy the breach, if it can be remedied?
A ‘reasonable’ amount of time, usually around three months.
109
What is the distinction between a positive and a negative obligation breach in terms of whether or not it can be remedied?
Positive: Always able to be remedied
Negative: Alienation is never able to be remedied, others depend on the facts.
110
Can a tenant apply for relief against forfeiture after a s146 notice?
Yes, the court will consider relief according to the proceedings and conduct of the parties.
111
When a tenant’s lease is forfeited and therefore their sub-tenant’s own lease comes to an end, can the sub-tenant obtain relief?
Yes, the landlord could even grant a lease to the sub-tenant for a period not exceeding the unexpired period of their sub-lease, although the rent may be higher.
112
When would the landlord impliedly waive their right to forfeit the lease for nonpayment of rent or other breaches?
If:
The landlord is aware of an act worthy of forfeiture by the tenant
The landlord does a positive act which amounts to a recognition of the continuance of the tenancy. (e.g. a rent demand sent by mistake/accepts rent/grant a new lease)
113
If a landlord does not have notice of a breach, but his employees do, will knowledge be imputed on behalf of the landlord?
Yes, it can be.
114
If a landlord receives rent after a s146 notice is served, will that count as a waiver of forfeiture?
Not if it is a continuing breach that is not remedied - the s146 notice remains valid even after (invalid) waiver.
115
What are the three remedies to be used against the tenant for non-payment of rent?
Action for breach of contract
CRAR procedure (commercial cases only)
forfeiture
116
How long does the landlord have to lodge a claim against a tenant for non-payment of rent? Where is this outlined?
Rent is subject to s19 Limitation Act 1980: a claim is statute-barred on the expiration of six years from when either the rent became due or the tenant acknowledged the debt in writing, whichever is later.
117
What replaced the common law remedy of distress?
CRAR - Commercial Rent Arrears Recovery.
118
What is CRAR?
Commercial Rent Arrears Recovery allows landlords of commercial premises to recover rent arrears by taking control of the tenant's goods and selling them.
119
Where is CRAR found in legislation?
Part 3 Tribunals, Courts and Enforcement Act 2007 (ACT)
Taking Control of Goods Regulations 2013 (REGS)
120
Can the CRAR regime waive the right to forfeit?
Yes, it can - it is an alternative to forfeiture.
121
Can CRAR be used for residential premises?
No, it is only available for wholly commercial premises.
122
Who can start CRAR?
Only a landlord whose immediate tenant has defaulted paying the rent.
123
What are the 5 requirements which must be satisfied before a landlord can use the CRAR procedure?
There must be a lease evidenced in writing (not a tenancy at sufferance)
124
Who can actually exercise CRAR?
An ‘enforcement agent’, who has been given written signed authorisation from the landlord.
125
What is the timeline for CRAR?
The tenant is given an enforcement notice.
After 7 clear days, the enforcement agent can take control of goods (only belonging to the tenant).
12 months after the enforcement notice, it expires.
126
How can a tenant intervene in CRAR?
They must make an application to the courts.
127
What must an enforcement agent do once entering the premises in CRAR?
Provide evidence of their identity
Provide a notice of information to tenant
Provide the tenant with an inventory of goods seized as soon as reasonably possible.
Obtain a valuation of goods
Sell goods after seven clear days of taking goods.
128
When does CRAR cease to be exercisable?
Once the lease has ended, but will still be able to be used in respect of goods taken control of under it before the lease ended and rent due and payable before the lease ended.
129
What are the four remedies for breaches other than nonpayment of rent by the tenant?
Damages
Injunction
Self-help
Forfeiture
130
Why are damages severely limited for breaches other than nonpayment of rent by the tenant?
The amount claimable is severely limited by s18(1) Landlord and Tenant Act 1927, which states that damages shall not exceed the reduction in the value of the property as a result of the breach, e.g. a broken roof can only be repaired to its original value, a whole new one can’t be paid for by the tenant.
131
What is ‘self-help’?
Where the landlord may wish to enter the premises and undertake any repairs themselves.
132
What is required for the landlord to enter the premises and ‘self-help’ the repairs?
There needs to be an express right reserved in the lease to enter and repair in order for them to do this. If the landlord is required by statute to repair, there can be an implied licence to enter and repair.
133
Which piece of legislation severely curtails a landlord’s right to damages for breach or forfeiture for non-repair?
Leasehold Property (Repairs) Act 1938. (When landlords were buying bombed property with a right to repair after the war and kicked the tenants out for breach of repair).
134
What are the requirements of the Leasehold Property (Repairs) Act 1938 in regards to limiting the landlord’s right to damages for breach or forfeiture for non-repair?
Must be a lease for 7 years or more
3 years or more must be unexpired
Can be used for residential or commercial properties
135
If the requirements of LP(R)A 1938 are met, what limits are imposed on the landlord?
The landlord can’t proceed with forfeiture or claim damages without first serving a s146 notice on the tenant.
136
Can the tenant claim relief from forfeiture or claim damages according to LP(R)A 1938?
Yes, the tenant can serve a counter notice within 28 days and the proceedings will end.
137
If the tenant serves a counter notice within 28 days, when can the landlord keep going with the remedies?
Only if the landlord shows that immediate remedying of breach is required to prevent:
A drop in the value of the landlord’s property
An occupying tenant requires it
A large sum being used on the repair in the future, when a small sum could be spent by doing the repairs immediately.
138
What relief outside of LP(R)A 1938 is available to the tenant in respect of internal decorative repairs?
After being served a s146 notice, tenants can use s147 LPA 1925, which provides a tenant relief from the courts for being liable for a breach of carrying out internal decorative repairs to the house if the notice is unreasonable. (Unless there is an express requirement in the contract or it is required for human habitation).
139
What are the tenant’s remedies for the landlord’s failure to repair?
Damages
Specific performance
Set-off/self-help
140
Does s18(1) Landlord and Tenant Act 1927 limit the tenant’s damages for breach by the landlord?
No, it does not. There is no predetermined ceiling.
141
What kinds of things will the courts take into consideration when determining how much the tenant should receive in damages from the landlord for failure to repair, if the tenant is selling the property?
If the tenant is selling the property, the loss of value of the interest is most likely.
142
What kinds of things will the courts take into consideration when determining how much the tenant should receive in damages from the landlord for failure to repair, if the tenant is staying in the property?
If the tenant is staying in the property, they would consider:
Alternative premises if their property is uninhabitable
Personal inconvenience
Storing furniture
Compensation for injury or health
Damage to items belonging to the tenant.
143
In which two circumstances will specific performance be ordered?
Common law: The tenant may obtain a decree from the courts for the landlord to repair the premises.
Statute: The County Court has power to order specific performance of a landlord’s repairing covenant for a dwelling house through s17 LTA 1985.
144
How do courts get around supervising specific performance?
They only need to only see the result and find if it complies with the order, so don’t need to supervise the whole process.
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If a landlord fails to perform their obligations, can a tenant withhold rent?
No, it is not an automatic remedy to refrain from paying rent. However, they may be able to deduct the costs of carrying out the repairs from rent, but it depends on the four requirements for set-off.
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What are the 4 requirements for set-off?
the landlord must be in breach of covenant;
the landlord has been given proper notice of the need for repair;
the cost of repairs carried out are no more than a reasonable amount; and
the amount to be set off, or deducted from rent, is certain.
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How would a landlord have excluded the right to set-off pre-2015?
Through an express provision in the lease.
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Why did the right to set-off being expressly excluded from a pre-2015 lease not fall foul of the Unfair Contract Terms Act 1977 and how did that change after 2015?
Because UCTA 1977 did not include interest in land. The Consumer Rights Act 2015 did include interests in land, so the landlord may not be able to exclude the right to set-off.
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What is a HHSRS?
The Housing Health and Safety Rating System - it rates hazards to see whether the property is fit for human habitation.
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Where in legislation did the HHSRS develop?
Housing Act 2004.
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What can the Local Housing Authority do in order to deal with category 1 and 2 hazards?
Must take action to deal with category 1 hazards (and can take action around category 2 hazards), through improvement notices, prohibition order, demolition orders etc.
