landlord and tenant (correct)

Question 1

What is the difference between a lease and a license?

Answer 1

a license passes on no interest in the land it just allows an activity that would otherwise be unlawful. A lease allows for sole occupation a license does not.

Question 2

What are the four requirements of a lease?

Answer 2

1. exclusive occupation
2. rent paid
3. duration of specific term
4. if the terms if more than 20 years it must be registered in land register

Question 3

What is a licence

Answer 3

1. a person agreement between licensor and licensee
2. a right to access a property- perhaps to pass through for access
3. licensee acquires no interest in the property
4. its merely a personal right which can be terminated by either party

Question 4

What is a wayleave

Answer 4

1. a wayleave is a temporary right received for making a payment. It usually relates to specialist activities such as utilities like laying pipes or cables
2. its personal to a company and cannot be transferred to another party

Question 5

What is an servitude?

Answer 5

1. a permanent right that has been acquired
2. can be passed to other parties
3. can be restricted to certain activities

Question 6

What is a prescriptive right

Answer 6

1.a right gained from exercising a right of access for 20 plus years

Question 7

What does “without prejudice” means

Answer 7

If info is labelled without prejudice its privileged info and cant be used as evidence if any sort of lease negotiations have to go to court or any sort of ADR

Question 8

What sort of info might you acquire from a client before commencing a lease renewal or review

Answer 8

1. signed ToE
2. clients objective and strategy
3. copy of the existing lease and any plans
4. copy of any licenses, assignments, variations
5. copy of past rent reviews
6. contact details of tenant to arrange inspection or details of landlord or agent
7. a copy of the property management file- to see if there is any background info that could assist
8. ask client if they have any comparable evidence

Question 9

What should be in a terms of engagement for a rent review

Answer 9

1. scope of work
2. .copy of CHP
3. info on fee basis and how its calculated this could be:
   - percentage of new rent agreed
   - a percentage of saving made from rent quoted
   - a fixed fee
   - a hourly rate
   - incentive fee

Question 10

what steps would you take in a rent review or lease renewal

Answer 10

1.check SUK
2CoI
3ToA
4.clients objective
5.obtain lease info-any sub leases, extension, varations etc
6.read through it all carefully and understand rent review clause and check its contracted outside of the Landlord and Tennant act 1954
7.check if time is of the essence
8.undertake site inspection and measurement
9.find comparable evidence and undertake market rental valuation
10. prepare report setting out recommendation to client
11.agree strategy with client
12.open negotiation, check any notices served are valid
13.conclude negotiations and document in rent review memo or for lease renewal instruct solicitors to prepare new lease in accordance with HoT agreed

Question 11

What is the hierarchy of evidence

Answer 11

This is the relevant weight attached to comparable evidence:

1. open market lettings
2. rent reviews and lease renewals
3. independant expert determination
4. arbtration determinations
5. court determinations
6. hearsay evidence
7. sale and leaseback
8. surrender and renewal

Question 12

Can you use post dated evidence ?

Answer 12

Yes you can in some cases. Courts have heard it to be admissible in some cases where there is a lack of evidence at the time. Baring needs to be given to the duration between the evidence and the review date. The longer the time gap the less weight the evidence should carry.

Question 13

What is the relevant legislation for Landlord and Tennant

Answer 13

this is no key legislation for scotland its mainly based on case law

Question 14

What would you do if third party determination was needed for a rent review

Answer 14

1. Read the lease and see what the rent review clause allows for. The options for third party determination should be agreed before and set out in the lease.
2. check the RICS guidance note. There is guidance on arbitration, independent experts, conflict of interest.
3. If a lease doesn’t stipulate a method I would consider what would be the most beneficial route for my client

Question 15

What would you do if third party determination was needed for a rent review

Answer 15

1. Read the lease and see what the rent review clause allows for. The options for third party determination should be agreed before and set out in the lease.
2. check the RICS guidance note. There is guidance on arbitration, independent experts, conflict of interest.
3. If a lease doesn’t stipulate a method I would consider what would be the most beneficial route for my client

Question 16

explain what an independent expert is

Answer 16

1. someone with a detailed knowledge of the market as a valuer
2. Can be appointed by RICS but not bound by judicial rules
3. bound by terms of lease
4. can have their own opinion on market rent
5. cannot appeal but can sue for negligence
6. good when lack of market evidence
7. no power to order disclosure

Question 17

explain arbitration

Answer 17

1.arbirators are appointed by the RICS
2.format includes agreed statement of facts and timetable for submission
3.statement of agreed facts are facts agreed by both parties e.g lease terms, floor space, comp evidence
4.arbitrator will provide reasoned award unless agreed otherwise with parties
5.they can only review info submitted by parties
6.not liable for negligence claim
7.can order disclosure
(arbitrator follows the arbitration act)
5.

Question 18

what are the key differenced between arbitration and IE

Answer 18

1. eviedence
2. negligance claims
3. right to ask for disclosure

Question 19

what four things must an expert witness show

Answer 19

1. impartiality
2. duty to court not client
3. evidence must be independent
4. evidence must be true and accurate

Question 20

What is the contents of a rent review memorandum

Answer 20

1. name of landlord and tenant
2. subject of lease
3. date of lease and rent review and basis or rent review
4. old and new rent
5. signed by both parties

Question 21

what is the minimum amount of notice you can give on a lease continuing on tacit

Answer 21

40 days

Question 22

what are the key clauses of a lease

Answer 22

1. lease details
2. rent
3. tennant obligation-repairing, alienation, insurance
4. landlords obligation- warrandice, insurance
5. irrantancy

Question 23

what are the rules for termination in Scotland

Answer 23

To terminate a lease in Scotland a landlord or tenant must serve an effective notice to quit on the other party. Even when a lease specifies an end date the parties must state their intention to quit. A lease will continue on tacit relocation if no notice is served.

Question 24

why might a notice to quit not to be valid

Answer 24

• not providing the correct notice period e.g served to late
• not complying with clauses in the lease- repairing clause perhaps

Question 25

What does the long leases Scotland act 2012 cover

Answer 25

1. converts ultra long leases (175 years plus) into ownership 2. permits some leasehold conditions to become real burdens 3. permits sporting rights relating to fishing and shooting to be preserved 4. permits the tenant to opt out of ownership if they wish

Question 26

does the landlord and tenant act apply in scotland

Answer 26

No there is very little legislative protection for tenant in Scotland so any protection will need to be set out in the lease

Question 27

when did the long leases scotland act come into force

Answer 27

2015

Question 28

can you explain a ground lease?

Answer 28

A ground lease is an agreement that permits a tenant to develop a piece of property during the period of the lease

Question 29

at what point must a lease be recorded in the land register

Answer 29

anything over 20 plus years must be registered in order for the tenant to obtain a real right

Question 30

can you explain the case law relating to rent reviews and how this comes into play in my roles

Answer 30

AWG Group vs HCP properties goes to show that time is not of the essense in rent reviews unless the rent review clause states it is. In this case the lease was subject to RR's every 5 years the next being due in 2014. The last rent review has been done in 2009 but the previous owners who has since sold the building in 2013. The sale particulars noted that the rent review was due in 2019 and AWG never invoked it. The court ruled that it didn't matter that the sale particulars had it wrong that did not waive the landlords right to a rent review as it was not stated that time was of the essence.

Question 31

what is some of the relevant case law

Answer 31

1. AWG Group vs HCP properties 2. Brucefield Estate Trustee Company Limited (in liquidation) v Computacentre (UK) Limited - tacit relocation 3. Gateway Asset Ltd v CV Panels Ltd - notice to quit

Question 32

what would you do if a lease does not have an end date

Answer 32

if a leases does not have an end date it is presumed under common law that the end date is the day proceeding one year from the date of entry. A minimum of 40 days notice must be given in this case.