Head 17: 2 Flashcards
(16 cards)
Insofar as we are talking about leases as an ordinary contract what is the required form?
There are NO requirements of form.
If a lease is to be upgraded to a real right then what is the required form?
Writing is required (under RW(S)A 1995).
What is the exception to the requirement of writing for leases to confer a real right?
Leases for one year or less
What happens if writing is required but not used?
It was held that the person bar provisions in s 1(3) RW(S)A DO NOT APPLY to leases (since it only applies to s 1(2)(a) obligations - contracts - rather than s 1(2)(b) obligations - leases.) [Advice Centre for Mortgages v McNicoll 2006]
What part of the lease becomes a real right?
The tenants’s right of occupation becomes a real right (not the whole contract)
What is a short lease and how can it become a real right?
Leases less than 20 years.
They become a real right by possession (Leases Act 1449)
In order for the Leases Act 1449 to apply what are the requirements?
- Lease must be in writing if for more than 1 year (same as RW(S)A 1995)
- There must be a specific continuing rent
- There must be an ish (date of termination)
- The tenant must have entered POSSESSION of the subjects (either civil or natural
WRIP
Millar v McRobbie 1949
Lease was negotiated and the prospective tenant was allowed to start using the property before the lease actually started. At around this time, the landlord sold this land and the buyer refused to recognise the lease since it was not yet a real right. The court upheld this view, that the lease was not yet a real right and thus wasn’t binding on the buyer. Despite the possession, since the lease had not actually started yet it could not be a real right and the buyer did not have to recognise the lease.
[The offside goals rule was not applied (even though one would expect it to since a lease can be made into a real right.)]
What is a long lease?
A lease greater than 20 years
Registration of a long lease will create a separate….. in the Land Register
Title sheet.
Can all leases be assigned?
No - some leases cannot be assigned due to the terms of the lease.
LOOK UP TEXTBOOK ABOUT LEASES OVER SEPARATE TENEMENTS (AND PAGE 4 OF NOTES)
LOOK UP TEXTBOOK ABOUT LEASES OVER SEPARATE TENEMENTS (AND PAGE 4 OF NOTES)
How does a long lease become a real right?
Under the Registration of Leases (S) Act 1857 long leases (> 20 years) must be registered in the Land Register
What if the new owner knows there is a lease which has not yet been recorded or registered? Can the offside goals rule apply?
In Millar v McRobbie 1949 it is was held that the offside goals rule did not apply. It is unclear whether a case with similar facts today would be decided differently.
How can a tenant transfer a lease?
Since a tenant’s lease is a right it can be transferred by assignation.
If there is a new landlord and a new tenant, are these new parties bound by the terms of the lease?
If A grants a lease to B and B obtains a real right. A then sells to C, C is bound by the lease.
