Alienation Flashcards
(28 cards)
For qualified covenants against assignment, the landlord must give its decision within a
reasonable time
What constitutes a “reasonable time” for the landlord to give or withhold consent for assignment?
depends on circumstances but should be measured in days or weeks, not months
If the landlord does not act reasonably in withholding or delaying consent, what remedy is available to the tenant?
damages
privity of estate
the ability of the landlord and tenant to enforce the provisions of a lease against each other
“new leases”
granted on or after 1 January 1996
When a new lease is assigned, is the original tenant still liable?
No, the original tenant is released from liability, and the tenant covenants are passed to the new tenant.
If the lease is silent, the landlord can only insist on an AGA if
it is reasonable to do so
AGAs only apply to
new leases (on or after 1 Jan 1996)
For assignment, the landlord’s solicitor will ask the tenant’s solicitor to give an
undertaking for costs, which will typically cover the landlord’s solicitor’s and surveyor’s costs and be capped at a certain amount
Once the undertaking has been provided by the tenant’s solicitor, the landlord’s solicitor will
draft a licence to assign
A contract for assignment is between
the assignee and assignor (current tenant)
a deed of variation
rare, will be required if the landlord wants to vary the lease for a new assignee
What enquiries will the assignee’s solicitor raise?
CPSE1 and CPSE4
Is a deposit payable for assignment?
no deposit is usually payable for assignment of a rack rental lease
Landlord’s solicitor pre-completion step for assignment
engross licence to assign in 3 copies, arrange for landlord to execute 1 copy
post-completion, the assignee’s solicitor will
submit SDLT or LTT; return and pay appropriate SDLT or LTT if necessary;
register assignment if necessary;
send formal notice of assignment to landlord’s solicitor
When will the tenant definitely be free to underlet?
if the lease is silent
Privity of contract in underletting
exists between landlord and tenant; tenant and sub-tenant but
no privity of contract between the landlord and the undertenant
As there is neither privity of contract nor privity of estate between the landlord and the undertenant, the landlord is not able to
enforce covenants against the undertenant. However, the undertenant can give direct covenants to the landlord in the licence to underlet.
Appropriate search for underletting of whole
OS1 search against the tenant’s registered leasehold title
Appropriate search for underletting of part
OS2 search against the tenant’s registered leasehold title
Appropriate search for underletting of unregistered lease
OS3
A commercial lease will typically require that any consent for underletting is given by
deed via a licence for assignment or licence for underletting as appropriate
AGAs apply to
assignment of new leases ONLY (not subletting)
