Landlord and Tenant Flashcards
(21 cards)
What is a Tenancy At Will?
o An agreement where tenants do not have a legal interest.
o Either party can terminate literally at will.
o Staying in occupation following termination can result in a trespassing offence.
o In Cricket V Shaftsbury case law it was demonstrated there was no security under a Tenancy at Will even if the duration of occupation is longer than 12 months.
What components must be in place in order to form a tenancy
agreement?
o The parties must be listed within the agreement (landowner & tenant).
o A physical property must be specified and the location must be fixed to land (this is why you cannot have a tenancy of a boat which is done via a license).
o The terms of the tenancy must be specified.
o The value of rent must also be specified (this can be a peppercorn rent but it must be specified otherwise it is not a tenancy or lease.
o There must be exclusive occupation (meaning that the tenant has exclusive use of the space and has the right to shut out everyone including the landlord).
o This differs from a licence where the landlord gives someone permission to enter so that they are not a trespasser however this scenario is not classed as a tenancy.
Explain Street vs. Mountford
A key piece of legislation that ruled that irrespective of the written agreement, if someone is paying rent and has exclusive occupation, a tenancy is formed.
What is a Periodic Tenancy?
o This is the legal name for a rolling tenancy with no fixed end date.
o An assured shorthold tenancy becomes periodic when a fixed term ends unless you agree another fixed term.
o The periodic tenancy does not end until one party gives notice.
o In a periodic tenancy, the rolling period depends on the intervals of when the rent is paid.
How could a tenant apply for a new lease?
o They could serve a section 26 notice on the landlord with asking terms.
o This could be served before or after the lease end but not prior to 12 months before the natural end date.
o There needs to be a 6-12 months notice before the current lease can end and the new one starts.
o The tenant could also apply to the court under section 29 once a notice has been served if the landlord has resisted the new tenancy.
o If both the landlord and tenant desire a new tenancy but cannot agree on terms, the court can determine the new terms of the lease.
Under what grounds can a Landlord object to a new lease?
Section 30 of the Landlord & Tenant Act (a-g):
▪ a) Tenant’s failure to repair the premises where an obligation exists.
▪ b) Tenant’s persistent delay in paying the rent.
▪ c) Other identifiable substantial Tenant’s breach of the lease grounds (a-c) are within the discretion of the court, so difficult for the Landlord to prove.
▪ d) Landlord offer of alternative accommodation (subject to same lease terms) with landlord paying for the moving costs.
▪ e) Uneconomic subdivision of the property (substantially less rent) where it was originally multi-let.
▪ f) Landlord’s intention to demolish/reconstruct or new construction work where intent must be demonstrated.
▪ g) Owner Occupier requirements however there must be 5 years or more of ownership.
If a tenant does not pay his rent what can the Landlord do?
o They can serve a formal demand notice before the rent falls due.
o They should make contact with the tenant to determine if they are aware of their obligations to pay.
o Another option is to negotiate a middle ground for example an agreement for the tenant to pay the rent later in the month (or payment plan).
o There may be an option to take the rent out of their rent deposit or parent company guarantee.
o There may also be an option to draw down money from their tenants guarantor.
o In a worse case of non payment legal action may be required which can be applied at a common law level.
What is your understanding of the term forfeiture?
The term forfeiture is the bringing to an end of a lease by
the landlord, following a breach of covenant by the tenant.
o This is exercised by peaceably re-entering the demised premises or commencing proceedings for possession of the demised premises.
o Forfeiture is a means for a landlord to terminate a lease, in the event of some default by the tenant.
o The landlord has to serve a write claiming possession or re-claim the premises through peaceable re-entry (for example changing the locks).
o He must arrange for the tenant to get his possessions back.
o Peaceable re-entry can be only used for commercial premises and not for residential property.
o The Law of Property Act 1925 states that the landlord cannot forfeit the lease without giving the tenant the right to rectify the breach.
o If the landlord wants to forfeit, then he should not accept any further rent.
What is a Section 146 notice?
A section 146 under the Law and Property Act 1925 is served by a landlord who intends to commence forfeiture proceedings against a tenant following a breach of the lease terms.
o A notice must be served before physical re-entry or a court order must be in place.
o Failure to do so can leave a Landlord open to a counter-claims for damages.
o There is no statutory format of notice, but the tenant must be informed of the following:
▪ Covenants or Conditions in the Lease.
▪ The breach of these covenants or conditions.
▪ A time frame is required to reasonably execute rectification and compensation if money is due to the Landlord.
When can a Section 17 Notice be served?
A Section 17 Notice is applicable if it is clear to a landlord that their current tenant will not be able to pay its rent or other fixed charges.
This can be served on the tenant or their guarantor within 6 months of the fixed charge falling due.
o Upon receipt of a Section 17 notice, the former tenant or guarantor is bound by the covenant to pay any outstanding rent and fixed charges.
o However if the deadline is missed and the notice is not served within the 6-month window, the landlord loses the right to pursue the former tenant or guarantor for that particular unpaid fixed charge.
What is an AGA?
AGA stands for ‘Authorised Guarantee Agreement.
o This is where an outgoing Tenant who is assigning a lease over to a new incoming Tenant will act as guarantor for the performance of the assignee for the lease covenants which they have been released from.
o If the assignee was to breach the covenants of the lease the original tenant acting as the guarantor under the AGA may be responsible for any outstanding payments until expiry of the
lease.
What are the implied landlords & tenant covenants under a typical
lease agreement?
Covenants of the lease implied by common law include:-
▪ The tenants’ covenant to pay rent and to keep the property in good tenantable repair.
▪ The landlords’ covenant to grant quiet enjoyment and to not derogate from the grant (where the property has been let for a specific purpose, the landlord cannot obstruct that purpose).
What is the procedure for a tenant wishing to carry out improvements?
o They would need to firstly check the provisions of the lease as this may contain a mechanism for carrying out improvements.
o On identification of any relevant clauses, they would then look to apply for the landlord’s consent along with provision of any supporting documentation required under the lease terms and details of the improvements.
Which section of the Landlord and Tenant Act stipulates that consent for an alteration cannot be withheld even if it is an improvement?
o Section 19 of the Landlord and Tenant Act 1927 would apply in this instance.
o This sets out that to withhold consent, the landlord must demonstrate that the improvement is detrimental to the property’s value
What does the Law of Property (Miscellaneous Provisions) Act 1989
state in regard to new leases?
o It states that generally leases must be in writing and the express terms should be contained within one document.
o The document must be signed by both parties and where contracts are exchanged, the express terms must be in the lease.
o Leases can be made orally if the lease duration is less than 3 years.
What is the difference between assignment and sub-letting?
o When you assign you hand over all covenants and obligations of the tenancy to a new party who takes full control of the lease.
o When you sub-let you usually contract out and create a new lease whilst retaining control of the over arching tenancy whilst entering into a new contract with the subtenant.
Describe to me the differences between a lease and a licence.
Lease = exclusive possession for a fixed term that grants the tenant a legal interest in the property.
Licence = grants permission to use the property for a specific purpose but does not grant exclusive possession, these are usually for short flexible periods and do not create a legal interest in the property and are more easily revoked.
What is included within a Tenancy at Will?
- Occupancy dates / terms
- Termination agreement
- Rent
- User
- Maintenance and repairs
- Insurance
- Utility and services
What is the purpose of S24 - 28 of the L&T act?
To provide security of tenure to business tenancies .
What are the ways in which a tenancy may come to an end (Termination Procedures)?
- Landlord serves a notice of termination under section 25
- Tenant requests a new tenancy under section 26
- Tenant serves notice of termination under section 27
- Landlord and Tenant agree terms for a new tenancy under section 28
What are a Landlords grounds for possession?
There are 7 grounds under section 30(1) that a landlord may oppose the request of a new tenancy within his section 25 notice, or in response to a tenants section 26 notice.
- Tenant has failed to carry out repairs
- Tenant has persistently delayed paying rent
- Tenant is in substantial breach of another covenant
- Landlord offers suitable alternative accommodation
