Head 17: 9

Question 1

How do commercial leases typically deal with assignation and subletting?

Answer 1

(i) a prohibition against assignation or subletting; or
(ii) a prohibition against assignation/subletting except to a group/associated company; or
(iii) a prohibition against assignation/ subletting [often also charging] “without the prior written consent of the Landlords, which consent will not be unreasonably withheld in the case of a respectable and responsible assignee of sound financial standing”. [MOST COMMON]

Question 2

If a commercial lease includes a prohibition against assignation/ subletting [often also charging] “without the prior written consent of the Landlords, which consent will not be unreasonably withheld in the case of a respectable and responsible assignee of sound financial standing”, what does UNREASONABLY WITHHELD MEAN?

Answer 2

See:

Renfrew District Council v AB Leisure (Renfrew) Ltd (In Liquidation) 1988

cf:

Lousada v JE Lesser (Properties) 1990

(Burgerking Ltd v Rachel Charitable Trust [2006])

Question 3

Renfrew District Council v AB Leisure (Renfrew) Ltd (In Liquidation) 1988

Answer 3

The landlords would not agree to the assignation until arrears of rent were paid, in addition to an immediate rent review, the addition of a full repairing and insurance clause and future rent reviews every 3 years rather than 5 years. The court held the landlord was effectively trying to rewrite the lease and this was not reasonable - consent had been withheld unreasonably.

Question 4

Lousada v JE Lesser (Properties) 1990

Answer 4

The landlord made consent to assignation subject to conclusion of an outstanding rent review; this was held to be reasonable - consent had not been withheld unreasonably.

Question 5

Burgerking Ltd v Rachel Charitable Trust [2006])

Answer 5

If the landlord gives several independent reasons for refusing consent to assignation, so long as one of these is reasonable that renders the refusal to consent reasonable

Question 6

In relation to residential leases what is the distinction?

Answer 6

Between PRIVATE and PUBLIC sector leases.

Question 7

[PRIVATE SECTOR RESIDENTIAL LEASES]

Antisocial Behaviour etc (Scotland) Act 2004 s 93.

Answer 7

Landlord must register with the local authority before granting a lease

Question 8

[PRIVATE SECTOR RESIDENTIAL LEASES]

What are the two main types of private sector residential leases and which is most common?

Answer 8

1) Assured Tenancies (Housing (S) Act 1988)

2) Short Assured Tenancies (Housing (S) Act 1988 - MOST COMMON TYPE OF PRIVATE SECTOR TENANCY

Question 9

[PRIVATE SECTOR RESIDENTIAL LEASES]

What are short assured tenancies?

Answer 9

The minimum duration is 6 months.

No security of tenure after duration expires.

Question 10

[PRIVATE SECTOR RESIDENTIAL LEASES]

For properties of 3 or more unrelated persons…

Answer 10

An HMO licence is required.

Question 11

[PRIVATE SECTOR RESIDENTIAL LEASES]

Antisocial Behaviour etc (Scotland) Act 2004 s 68

Answer 11

Duty on the landlord to control anti-social tenants

Question 12

[PRIVATE SECTOR RESIDENTIAL LEASES]

Housing (Scotland) Act 2006 s 14

Answer 12

Duty on the landlord to meet the “repairing standard” - defined in s 13

Question 13

[PRIVATE SECTOR RESIDENTIAL LEASES]

Housing (Scotland) Act 2006 s 13

Answer 13

The repairing standard is met if:

⁃ (a) the house is wind and water tight and in all other respects reasonably fit for human habitation,
⁃ (b) the structure and exterior of the house (including drains, gutters and external pipes) are in a reasonable state of repair and in proper working order,
⁃ (c) the installations in the house for the supply of water, gas and electricity and for sanitation, space heating and heating water are in a reasonable state of repair and in proper working order,
⁃ (d) any fixtures, fittings and appliances provided by the landlord under the tenancy are in a reasonable state of repair and in proper working order,
⁃ (e) any furnishings provided by the landlord under the tenancy are capable of being used safely for the purpose for which they are designed, and
⁃ (f) the house has satisfactory provision for detecting fires and for giving warning in the event of fire or suspected fire.

DON’T NEED TO LEARN ALL OF THIS

Question 14

[PRIVATE SECTOR RESIDENTIAL LEASES]

What if there is a breach of e.g. s 14 of the Housing (S) Act 2006?

Answer 14

The tenant can apply to private rented housing committee (s 22). It can make a “repairing standard enforcement order” (s 24). Failure to comply with this without reasonable excuse is an offence (s 28).

Question 15

[PRIVATE SECTOR RESIDENTIAL LEASES]

What happens to deposits in these tenancies?

Answer 15

Now the deposit must go to a third party under the Tenancy Deposit Schemes (Scotland) Regulations 2011.

Question 16

[PUBLIC SECTOR RESIDENTIAL LEASES]

Two types of public sector lease?

Answer 16

1) Scottish secure tenancies
2) Short Scottish secure tenancies

(I think both are under the Housing (S) Act 2001)

Question 17

In relation to agricultural leases what are the 5 special statutory regimes?

Answer 17

(a) agricultural holdings - Agricultural Holdings (Scotland) Act 2003;
(b) crofting tenure - Crofters (Scotland) Act 1993;
(c) small landholders - Small Landholders (Scotland) Act 1911;
(d) statutory small tenants - Small Landholders (Scotland) Act 1911;
(e) cottars - Crofters (Scotland) Act 1993 s 12.

Question 18

Salveson v Riddell [2013] UKSC 22.

Answer 18

This was a challenge to some of the Agricultural Holdings Regulations (under ECHR art 1 protocol 1) - this succeeded.