Landlord and Tenant Flashcards

Question

Where would you typically have a licesne?

Answer 1

- Flexible office - parking - temporary storage, vaults - scaffolding (where you can be moved)

Answer 2

- More **flexibility**. - **Few rights** to the **tenant**. - Not **granting** security of tenure. - Usually **shorter** period of notice.

Answer 3

Tenant's right exclude others from it

Answer 4

1. **Exclusive occupation** 2. Payment of **rent** 3. Duration for a **specified term** 4. If for more than 3 years, the terms must be in writing, signed and registered as a deed

Answer 5

1. A lease provides an occupier with an **estate in the land** (a license is a permission to make it lawful for them to use the land) 2. A lease can be assigned (a license is normally a personal right that cannot be assigned) 3. **A lease cannot be terminated until it expires** (unless there is a break clause) – a license can usually be revoked at any time

Answer 6

Street v Mountford (1985)

Answer 7

Red line boundary, scale, north sign, orientation, need a plan for each floor if it is multi-let building.

Answer 8

- Form of **license** created by written agreement for an **unspecified time** in which the landlord **may evict the tenant at any time**. - Not a legal interest in land with no renewal right

Answer 9

1. For allowing a tenant **early entry** for fit out works 2. Whilst tenant is **agreeing a new contracted out of 1954 lease** after the **lease expiry**

Answer 10

- **Temporary right** and **receives an annual payment** - It is personal to the company and cannot be automatically transferred to a new owner - It is not compulsorily registrable

Answer 11

Providing a right for an electricity company to install and retain their apparatus

Answer 12

- A permanent right and receives a capital payment - It is capable of being registered at the land registry - It allows a right enjoyed by one party over the land of the other

Answer 13

A prescriptive right of way or prescriptive easement can be obtained because of continuous and uninterrupted use being proven over a period of not less than 20 years

Answer 14

- Can be granted by a landowner to allow access over the land. - They are not public rights of way and the public do not have a right to use them. - There is usually signage in place to confirm that there is a permissive right of way

Answer 15

The process by which a person who is not the legal owner of the land can become the legal owner through possession of the land for a specified period of time, without the owners permission

Answer 16

1. Instruction 2. Pre-inspection 3. Inspection 4. Report 5. Negotiations 6. Resolution

Answer 17

1. Conflicts 2. Check competent 3. TOE (including a fee basis)

Answer 18

1. Look at lease/licenses 2. Identify notice requirements (ie is time of the essence?)

Answer 19

- measurement; - alterations; - comparables;

Answer 20

- comparable enquiries; - client requirements; - ERV; - recommendations;

Answer 21

- negotiated settlement or dispute resolution; - documentation

Answer 22

A headline rent ignores all incentives/concessions granted on a letting, whether they be for fitting out, pure incentive or in lieu of dilapidation works

Answer 23

The length of term to be valued (also known as the hypothetical term). If this is silent assume the residue of the term (Basingstoke and Deane Borough Council v Host Group (1987))

Answer 24

United Scientific Holding Ltd v Burnley Borough Council (1977)

Answer 25

provides that the general assumption is that time is not of the essence unless there is sufficient contradictions that indicate otherwise

Answer 26

- Some rent review clauses in older leases require the landlord to specify the rent in the trigger notice - The clause will state that if the tenant does not serve the appropriate counter-notice within a specified time, the tenant will have deemed to have accepted the rent

Answer 27

- The Courts have held that this is admissible provided it supports circumstances which could have been known about at the effective rent - A time line can be used to devalue post-dated evidence - However, post rent review dates such as the Covid-19 pandemic cannot be taken into account to the extent that they would not have been in the mind of the parties at the rent review date - 6 months is acceptable - the weighting of this must be considered

Answer 28

- Proposed rents - Timeframe to respond – usually 21 days - without prejudice save as to costs – cannot be shown to a third party until resolution has been determined/awarded

Answer 29

- Part 36 offers to settle in the prescribed form aim to encourage parties to try and settle a dispute.

Answer 30

- They set out the costs and other consequences that a party will face if it refuses a reasonable offer to settle.

Answer 31

- An additional cost sanction applies to parties not accepting Part 36 offers – an additional sum of - 10% on costs up to £500k and 5% on costs above £500k up to £1m (ie a maximum enhancement of £75k).

Answer 32

- Part 36 offers are not as flexible as Calderbanks and they are very prescriptive of the award of costs following a Court award (the award on costs involving Calderbanks are still discretionary). - Revised rentals following an award and a Part 36 offer need to be paid within 14 days. - This is not the case with awards following the use of a Calderbank offer.

Answer 33

- Read the lease to establish the method of determination within the rent review clause - Typically, the lease will identify two options for dispute resolution – the appointment of an arbitrator or the appointment of an independent expert - Sometimes a lease will provide for the landlord to have the option to choose between an arbitrator or an independent expert - Leases typically provide for the appointment of the dispute resolver to be made via an application to the Dispute Resolution Service of RICS – the current cost is £425 - Advice on how to deal with conflicts of interest when acting as an arbitrator of IE is contained in RICS Professional Standard: Conflicts of Interest for Members acting as dispute resolvers, 2020 - Selection of method of determination - Options open for third party determination are agreed before the lease is signed and set out

Answer 34

RICS Guidance Note – ‘surveyors acting as arbitrators in commercial property rent reviews’ - 2013 clarifies how to deal with conflicts and the duty of an arbitrator

Answer 35

- RICS Professional Standard: Independent Expert determination, 2016

Answer 36

Level Properties Ltd v Balls Brothers Ltd (2007) - A rare example of an experts determination of a rent review case not being held to be binding - It was held that his decision was based upon incorrect interpretation of a rent review clause

Answer 37

You can appeal to the High Court within 28 days of the award on THREE specific grounds: 1. A challenge to the tribunal’s jurisdiction 2. On a point of law 3. Serious irregularity

Answer 38

- Name of landlord and tenant - Address of property - Date of the lease and rent review - Confirmation of new rent agreed - Signed and dated by both parties - It can also be recorded by an independent experts determination or an arbitrators award or written acceptance of the Calderbank offer

Answer 39

1. It is a tenancy 2. The premises must be used for business 3. There must be occupation of at least part of the premises by the tenant 4. There must be occupancy of more than 6 months 5. It must not be an exempted or excluded tenancy (such as a tenancy at will or service tenancy) 6. There must be a component landlord (freeholder or superior tenant with more than 14 months to run)

Answer 40

Same procedures as for rent review in terms of taking on the instruction but lawyers are usually used for the service of notices.

Answer 41

- A business tenancy to which the act applies does not expire by effluxion of time – but only when one party serves a notice. When no notice is served this is called ‘holding over’ until either the landlord or the tenant serves a notice to terminate the lease in accordance with the provisions of the act - It will continue on the same terms until its termination in accordance with the Act

Answer 42

a date not more than 12 months and not less than 6 months before the date for the termination of the tenancy to be specified. It does not have to be served on a quarter day.

Answer 43

Be given by a competent landlord to the tenant? Relate to the whole property State the date for the termination of the tenancy. Be in the prescribed form and inform the tenant of their rights. If a landlord does not object to a new lease, they must set out the proposed terms including new rent. Parties can extend time limits by agreement. Max. term of 15 years can be granted by the county court.

Answer 44

- Where the landlord is prepared to grant a new lease, (a non-hostile) the proposed terms of the new lease must be stated to include the new rent. - Where the landlord opposes a new lease (a hostile notice) the grounds for opposition must be stated

Answer 45

- Name and address of landlord and tenant - Address of the property - Notice of the date of the end the tenancy (a ‘hostile’ or ‘friendly’ notice) - Confirmation whether a new lease is to be opposed or granted. - Confirmation of the date of response required. - Landlord proposal for a new tenancy to include the proposed rent if a ‘friendly’ notice. - If the landlord opposes the new tenancy (a hostile notice) the ground(s) for opposition to be stated - A strong recommendation to seek professional advice.

Answer 46

document that a landlord can serve to a tenant to oppose a request for a new tenancy

Answer 47

* When to serve: The landlord must serve the counter notice within two months of receiving the tenant's request * What to include: The counter notice must state the grounds for opposing the new tenancy

Answer 48

If a tenant wishes to vacate while they are holding over following the expiry of the contractual term, a S27(2) notice must be served on the Landlord. This notice must give at lease three months’ notice of termination

Answer 49

a) Breach of repairing covenant b) Persistent delay in paying rent c) Other substantial breach d) Provide suitable alternative accommodation e) Uneconomic subdivision (compensation payable) – landlord intends to let the whole property and the lease was created by sub-letting f) Redevelopment, Demolition or reconstruction (compensation payable) g) Owner occupation (compensation payable)

Answer 50

Ground a) to c) are often grouped together and called ‘fault based grounds’ because they involve breaches of the existing lease by the tenant.

Answer 51

Grounds a) to e) are discretionary and the Court will decide if it is reasonable

Answer 52

For redevelopment, landlord must prove firm intention, prove funding and planning, substantial work and necessity to gain vacant possession and an ability to redevelop provided vacant possession is secured

Answer 53

For owner occupation, landlord must have owned the property for 5 years and prove intention to occupy and or the business

Answer 54

The landlord must include the grounds for opposition in a section 25 notice or counter-notice, and they cannot later change these grounds.

Answer 55

If a landlord refuses a new lease based on ground F, the tenant is entitled to compensation. To prove ground F, the landlord must show that they have the intention to redevelop and the ability to carry out the work. The landlord can usually show their intention by providing board minutes, a signed building contract, or indicative plans. They can usually show their ability to carry out the work by demonstrating that there are no significant obstacles to redevelopment. This could include showing that they have secured funding for the development and a reasonable prospect of getting planning and other permissions.

Answer 56

- Post 1st June 2004, Regulatory Reform Business tenancies Order 2003 states that a 15-year maximum term may be granted by a court, albeit the parties are free to agree longer if they wish - Must be market rent - Ignore previous occupation, goodwill and any tenant improvements undertaken with the landlord’s consent within the last 21 years

Answer 57

- Strictly speaking the valuation date for the new rental for a lease renewal in the County court is the commencement date of the new lease - The lease commencement date will coincide with the diposition of proceedings, which will be 3 months and 21 days after the hearing/trial - To the extent that is not possible to predict rental values at a future date, the valuation date for lease renewal is often agreed, or taken for practical purposes, as the date of the hearing or trail or expert witness reports

Answer 58

S.34 of the Act is titled ‘Rent under new tenancy’ and provides that the rent should be: ‘as may be agreed between the landlord and the tenant or as, in default of such agreement, ,ay be determined by the court to be that at which, having regard to the terms of the tenancy, (other than those relating to the rent), the holding might reasonably be expected to be let in the open market by a willing lessor’

Answer 59

1. Any effect on rent of the tenants occupation 2. Any goodwill in the tenants business attaching to the premises 3. Any effect on rent of improvements carried out by the tenant – unless the works were undertaken as an obligation to the landlord or completed more than 21 years before the date of application for a new tenacity 4. in the case of licensed premises, any effect on rent of additional value because of a license

Answer 60

Introduced as a later amendment (S.24A) by the Law of property Act 1969 - It is a rent that is payable after expiry of the contractual term of a 1954 Act protected lease and before a formal lease renewal has completed - Either party may apply for an interim rent - Interim rents are only triggered after the service of S.25 or S.26 Notice - It is payable from the earliest date that could have be specified in the S.25 or S.26 Notice - For lease renewals of the same demise where the terms of the lease have not changes materially, interim rent is usually the same as agreed for the new tenancy

Answer 61

Where the demise has changed, or where the lease terms have changes, or where significant changes in the market between the effective date for the interim rent and the start date of the new lease (as occurred during the Covid-19 pandemic), interim rent can be different to the rent under the new lease - The basis of calculating interim rent is different if the tenant does not take up a new tenancy

Answer 62

Requires information from either the landlord or tenant – so that the landlord or tenant can check exactly who is the competent landlord or the tenant with statutory protection

Answer 63

- Defined under the Section 44 as the person/body upon whom a notice should be served or who should serve the notice - Must be a freeholder or superior tenant with an unexpired term of 14 months

Answer 64

- The default dispute resolution mechanism for the renewal of a lease that is protected by the LTA 1954 is a referral to the County Court - Subject to both parties agreeing, an ADR is a reference under PACT (Professional Arbitration on Court Terms)

Answer 65

- After the service of a valid S.25 or S.26 notice, the process requires one party (usually the tenant) to apply to court for a new tenancy (“issue proceedings”) and subsequently to serve proceedings on the opposing party - The court process starts with a case management conference, or a pre-trail review (usually over a call), at which a timetable for each review of the case is agreed - A date for hearing is fixed and if the matter goes to court, then the lawyers and witnesses present a case and the Court orders a new tenancy - Compliance with procedural steps and deadlines is vital - The trail judge has discretion over the costs of the proceedings - After the Order is made, the tenant still has the option of deciding whether or not to take up the lease on the terms Ordered – there is a cooling off period

Answer 66

- Only an option if both parties agree to refer the dispute to PACT – must be consensual - This is a joint initiative by RICS and the Law Society - It is encouraged by the courts and by RICS an ADR mechanism for unopposed business tenant renewals - Non-rent issues can be decided by a solicitor and rent issues can be decided by a chartered surveyor - The parties are free to decide some procedural matter, including whether the dispute resolver acts as an arbitrator or an independent expert - Slightly different procedures apply for Pre-issue PACT or Post-issue PACT - The dispute resolver can be appointed following an application the ADR service of RICS or application to the Law Society - The decision is binding

Answer 67

- Fast - Cost saving – expensive County Court hearing is avoided - Greater flexibility and control over procedure for the parties - Decision by a surveyor on rent-related terms rather than a County Court judge

Answer 68

- In March 2023 the Law Commission announced that it intends to review Part II of the Landlord and Tenant Act 1945 - The stated aims of the review are: ‘Ensuring Part 2 of the Landlord and Tenant Act 1954 works for today’s commercial leasehold market’ - As at July 2024, the next steps are stated to aim to publish a consultation paper in Autumn 2024

Answer 69

- Section 34A of the Act sets out the procedure which must be followed to contract outside the Act

Answer 70

- A requirement of the head lease to grant any subletting outside the Act - The landlord will want to re-occupy the property in due course - The landlord wishes to redevelop the property at the lease end - The rent may be lower - The landlord wants future flexibility

Answer 71

When the lease comes to an end, the tenant has no statutory right to remain in occupation and no compensation is payable at the end of the lease to the tenant The landlord must ensure the premises are vacant or ensure new lease is in place at the lease expiry date. If they accept rent then a protected tenancy must be created If terms have not been finalised for a new lease, but the Landlord is happy to grant the tenant a new lease, then a tenancy at will might ensure that the tenant cannot claim statutory protection for the period between the expiry of the old lease and the commencement of the new lease No rent should be collected until the new lease has been completed as the acceptance of rent could lead to a protected new tenancy

Answer 72

The landlord is required to serve a notice on the prospective tenant, warning that the proposed lease will not be protected. This is known as a ‘health warning’ The proposed tenant must then make declaration in response, confirming that they have received the notice and accept its terms This must be completed before the lease is signed

Answer 73

1. Simple declaration – given when parties have at least 14 days or more prior to committing to the lease 2. Statutory declaration – given when the parties have less than 14 days prior to committing to the lease. If this is the case, a statutory declaration must be made before an independent solicitor

Answer 74

- Put in place robust systems to consider strategy and diarise action points in plenty of time; - The parties’ intentions/preferences are key to devising a strategy; - Therefore, early dialogue is, in most cases, advisable for all parties; - Liaise with solicitors to ensure that your client’s position is protected. - Consider what the market is doing and where it might go.

Answer 75

Protects business tenants by giving them the right to renew their lease Provides compensation to tenants if the landlord prevents a lease renewal Ensures that commercial tenants cannot be evicted without following the Act

Answer 76

The rent that is payable under the 54 act, for the period of occupation between the termination of the previous tenancy and the commencement of the new one

Answer 77

Normal market rent unless material change in the market

Landlord and Tenant Flashcards

(101 cards)