Landlord and Tenant Flashcards
What are the differences between arbitration and independent expert?
An independent expert can use their own knowledge to come to a determination and is not limited to the parties’ submIssions. An arbitrator will act in a quasi - judicial role to arbitrate between the parties and their evidence is based solely on the cases presented. An arbitrator cannot consider external evidence but only the evidence presented, whereas an IE can.
IE = determination A = award
IE = expert is guided by the lease for costs A = has discretion on costs
An independent expert can be sued for professional negligence when decision making however arbitrators are effectively immune as they are arbitrating between a range out by the parties.
An independent expert may not require to review written submissions, but only the lease for low value property . An arbitrator will require the two submissions to make a decision.
An arbitrator is governed by the Arbitration (Scotland) act 2010 whereas the independent expert is governed by common law.
What are the usual assumptions and disregards for an OMV rent review?
Assumptions:
1) there is a willing lessor and willing lessee
2) premises are vacant
3) no premium is payable by any party
4) to the length of the term left to run on the lease
5) tenant has fulfilled obligations
6) that the hypothetical let is on the same terms
Disregards:
1) any effect on rent of the tenant being in occupation
2) tenants goodwill
3) tenant improvements
4) the effect of any licence
What are the benefits of Mediation?
This process is a voluntary and confidential way of settling a dispute.
Good for preserving the relationship between the parties.
Benefits: speed and cost savings (monetary and emotional)
What is the difference between a lease and a licence?
Lease = exclusive possession, fixed duration, legal interest in the land/property
Licence = permission to occupy and does not grant exclusive possession
What are the statutory obligations under common law for:
A: the Tenant
B: the Landlord
Tenant:
1) Must take possession, occupy and use the subjects
2) use for purposes for which it was let
3) take reasonable care of the property
4) pay rent when it becomes due
5) plenish the subjects
Landlord:
1) place tenant in full possession of subject property
2) not to derogate from the grant
3) to provide subjects that are reasonable fit for the purpose for which they are let
4) to carry out repairs
Can you give me an example of case law around Lease/Licence?
Street vs Mountford
Exclusive possession was effectively granted which meant that this was not a Licence but a Lease, and appropriate notice was required for termination under lease provision.
Can you give me an example of case law around landlord/tenant statutory obligations?
Graham black vs Stevenson
Hotel had shut down and the Landlord claimed damages for non-occupation. Maintenance and loss of goodwill whilst it was closed.
What protection is there in Scotland for shops renewing a lease?
There is the tenancy of shops Scotland act 1949- this deals for provision for renewing a lease of a shop where LL has served NTQ under the Lease and tenant is unable to renew satisfactory terms
What is the procedure under the tenancy of shops act 1949?
Sherrif has the power to renew the lease for another year. There are circumstances where the renewal would not be granted.
Case law: Superdrug vs Network Rail
Time frame for application. In this case the tenant was outwits the 21 day notice period
What is time is of the essence?
This is when there is a time limit on the rent review. Always read the lease! The clause must be specific. United holdings vs burugh council case where the lease set out timescales however, time is of the essence was not specifically set out in the lease.
What is the purpose of a rent review?
To adjust the rent to reflect changes in the value of money and of property.
This was expressed in the Basingstoke and Dean Borough council vs Host group Ltd (1987)
How do you initiate a rent review?
Always read the lease
Some leases require rent reviews to be triggered by one party giving notice to the other
Some leases simply provide for rent to be reviewed at review date
Trigger notices should not be marked ‘STC or WP’ since this might allow the tenant to argue the notice was not legally effective
Why is STC and WP used?
To reserve the legal position of the party using the phrase
What are the key contents of a rent review clause?
Basis of valuation
Assumptions and disregards
Time limited/Trigger notice requirement/ how this is initiated
Can you talk about the process for debt recovery in your example at 3 Osborne st?
1) Read lease and Identify non-payment of rent quickly and try to resolve with tenant (could be that they missed an invoice?)
2) try to arrange a meeting to discuss, if there were cash flow issues perhaps advise of an informal payment plan
3) no contact - send formal demand requiring rent to be paid by (14 days) or seek termination of lease/legal recovery
4) if no payment, serve another 7 day demand and the consider legal proceedings
5) in this case, pre irritably was served, which also allowed remedy for the tenant. There was continued non payment of rent therefor irritably was served with immediate effect. In this case vacant possession was given as the tenant vacated the property. Statutory demand was attempted to be served by sheriff officers which required 21 day payment in full. In this case the company was in liquidation and guaruntor was being pursued for payment, sheriff officers could not confirm that the notice was being served to correct address and neighbours weren’t particularly forthcoming. Continued expense would have brought the claim down to about 5,200. My clients policy is to write this off as the cost of further legal action makes this not economical.
In this case we would have had to obtain a decree because the lease wasn’t registered, and I would have sought legal advice for financially effective option.
