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ACP > 5.1 Commercial Lease: T's Os, L's Os, Remedies + Break Clause > Flashcards

5.1 Commercial Lease: T's Os, L's Os, Remedies + Break Clause Flashcards

(93 cards)

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1
Q

What O should T have to decorate externally

A

Only every 3 (try to negotiate up to 5 in line with internal)

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2
Q

Who should NOT determine reinstatement value for insurance

A

L

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3
Q

When should debt of repair from self-help clause be recoverable as debt (acting for T)

A

Within 14 days of written demand

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4
Q

What certificate is signed for Service Charge Costs

A

Service Charge Certificate

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5
Q

What two things should be excluded from repair Os in new build

A

Latent/Inherent Defects and anything covered under DLP of BC

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6
Q

How can you protect T in service charge regarding their share of the costs to be paid

A

Reasonable and fair proportion, reasonably determined by L, with a cap

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7
Q

When should a rent suspension clause for damage by IR be triggered

A

If Property unfit for use/occupation, or Common Parts badly damaged so Property inaccessible/unusable

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8
Q

If T is to carry out alterations, what should S check which T might be able to claim

A

Position on compensation under Part 1 LTA ‘27

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9
Q

Should L be able to add other risks to ‘Insured Risks’?

A

Yes, acting reasonably - ensures only insuring against relevant risks

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10
Q

What is it normal for L to be able to charge if T does not comply w/ notice to remove all chattels + alterations from premises

A

Reasonable proportion of Annual Rent as debt due within 7 days of written demand

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11
Q

What scenarios should be provided for in the case of paying provisional service charge

A

Provide for what happens if overpaid or underpaid

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12
Q

What covenant should T argue for in terms of alterations

A

FQC + no unreasonable delay

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13
Q

Is the Code for Leasing Business Premises legally binding?

A

No - only voluntary

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14
Q

What standard should L use to carry out Services

A

Good standard

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15
Q

Why limit insurance for reinstatement to cost, not value

A

Valuing may not be same as actual cost

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16
Q

What can O to repair in new building be (wording cannot be used for old)

A

Can be ‘put and keep’

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17
Q

When should Break Notice NOT have effect

A

Material breaches only

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18
Q

For what kind of building should T’s O to repair be by ref to Schedule of Condition

A

Old building

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19
Q

How can you protect T in service charge regarding provisional SC

A

Should NOT be considered ‘Rent’

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20
Q

Why should T not pay Insurance Rent based on gross cost of premium before discount

A

paying more than fair proportion - T should benefit from discount

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21
Q

How can L require payment of Rent by alternative method - change drafting so it says what

A

If reasonable + w/ written notice

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22
Q

Are costs on indemnity basis acceptable?

A

No

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23
Q

How should amount of Insurance Rent T should pay be worked out?

A

Reasonable cost of premium after discount/commission

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24
Q

When will T have to pay Default Interest Rate

A

if late paying rent

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25
The period for which L is to insure himself for rent suspension must match what
Period of rent suspension for T
26
What endeavours will T settle for L to use for services
All reasonable if best not agreed
27
What should definition of 'Property' and 'Building' make clear
What is within T's Demise and what is retained by L
28
What should you ensure break clause is not, in terms of who can exercise
Not personal to e.g. T as defined
29
What should happen if underpaid through provisional service charge
Payable within X days of written demand
30
What is the general definition of an Uninsured Risk
Cover not generally available for property of this type, or unreasonable to expect L to get in the circumstances
31
What two specific clauses should L have for remedies
Forfeiture/re-entry, and self-help
32
When should T's O to repair only be to maintain property
If old building
33
When is VAT payable on 'Rent'
If L has opted to tax
34
When is it acceptable for L to charge T through Service Charge the cost of **renewing** articles
If beyond economic repair
35
What kind of damage should T never have O to repair
Anything caused by (Un)Insured Risk, unless act of U(T) has vitiated policy
36
Should T agree to contribute to reserve fund under Service Charge
No
37
Change any provisions for entry to include what
Reasonable times w/ reasonable notice unless emergency
38
What should happen if lease not reinstated by end of the rent suspension period (2 ways)
Terminate immediately upon expiry w/ notice, or provide for notice period within rent suspension period
39
Why will L want to include rent and service charge in annual rent
To use forfeiture w/o needing 146 notice and also CRAR
40
Example of services which should be excluded from Service Charge as excluded as TO elsewhere
Repairing Inherent Defects or contamination
41
What two risks should 'Insured Risks' cover
Flooding and damage caused by Terrorism as defined in the Terrorism Act 2000
42
Change ref to 'immediately' too?
ASAP
43
If L is able to require T w/ notice to remove all chattels and alterations, what should you draft in to restrict L's right
Must be reasonable for him to so require
44
Should services by L be conditional on T paying service charge?
No
45
What is it normal for T to be able to install/remove w/o L's consent
Internal demountable partitioning, as long as making good damage caused
46
How should L exercise any discretion under Services
In the interests of good estate management
47
What should T's O to replace articles be limited to
Similar articles if beyond economic repair
48
If L has rejected T's rent, what interest should T pay
Normal interest rate, not Default
49
If L is able to insure against other risks, what connecting word should be used to ADD this discretion to the list
'And', not 'or'
50
Case on self-help
Jervis v Harris
51
When might T be able to claim compensation for alterations
If statutory procedure followed + no O to reinstate
52
What is self-help
L can recover cost of repairing when T in breach as debt
53
Jervis v Harris ratio
Self-help
54
What should happen at RR regarding T's alterations
Disregard
55
What express clause should be included in break clause
Refund proportion of rent + VAT overpaid to next Rent Payment Date
56
Should provision of services be subject to L not being obliged to apply insurance monies to damage caused by IR?
No
57
How to work out what is T's fair proportion of Insurance Rent
By metre squarage of premises
58
Why is it important break clause isn't personal
Harder to assign lease
59
What should happen if overpaid through provisional service charge
Credit to next payment
60
If L is able to decide to change Services, what may T ask L to do
Require T's consent (but may be refused)
61
M&S v BNP showed what
Need express clause to recover overpaid rent when exercising break clause
62
Example of cap on any single service, e.g. MA fees
10% of Service Costs for single service
63
If lease states T to assume VL for contractors, do what?
Limit to (U)T only to reduce exposure to risk
64
Should T agree to comply w/ recommendations of service suppliers?
No - not statutory O
65
Insurance for reinstatement should be limited to what
Reinstatement **COST**, not value
66
What statutory O should T explicitly exclude any liability for
Liability for remedying contamination not caused by T
67
What might the effect be if one side takes advantage of other side's mistake
Rectification or agreement being a nullity
68
Does L HAVE to insure property?
Yes - should be obliged to
69
M&S v BNP ratio
Express rent refund
70
How can you protect T in service charge regarding excluding L's ability to recover VAT
Exclude VAT if capable of recovery, not just if recovered
71
What should lease state if L does not recover enough money from insurer to repair damage by IR
Cannot be recovered as Service Charge
72
What should T obtain if new build
CWs from Professional Team
73
If consent/approval to be obtained from other party, what amendment should be made
Not to be unreasonably withheld or delayed
74
Who draws up lease from Hot
L's S
75
What should Default Interest Rate be
4/5% above Interest Rate and no more
76
Who should sign Service Charge Certificate
Independent accountants/auditors who are suitably qualified
77
If there is an undertaking to do a specific endeavour, what should it say
Use reasonable endeavours
78
Example of cost which L is entitled to be reimbursed from another source, so should not claim from Service Charge
Payments from insurers for damage by Insured Risks
79
What can L's O to insure the property be subject to
Insurers' exclusions
80
Change any ref to 'cost' too?
Reasonable and proper costs, cap to X figure
81
What defects will need to be defined for repair Os in new build
Latent and Inherent Defects
82
Change 'discretion' to?
Reasonable discretion
83
What endeavours should T argue for L to use for Services
Best
84
Change ref to 'on demand' too?
Within X days of receipt of written demand
85
Why argue that consent to alter should also not be unreasonably delayed - why is it important
S.1 LTA '88 does not imply
86
Why can't one side take advantage of other side's mistake
Against Principle 2
87
Express rent refund case
M&S v BNP
88
What services should be excluded from Service Costs
Any services T will not benefit from, services T has excluded as TO elsewhere, or costs L is entitled to reimbursement from other source
89
What should forfeiture not affect
Rights/remedies in event of breach of either party
90
What does the Code state about damage by Uninsured Risk + termination
T should have right to terminate unless L willing to rebuild
91
When should there be no O for T to decorate again
If already decorated in 24-month period, and not before end of term if SoT under '54 Act
92
What O should T have to decorate internally
Only every 5 years
93
If a decision of L might affect T, what should L act in
Interests of good estate management

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