lease Flashcards
(126 cards)
1
Q
define a lease
A
contract which a person grants to another an exclusive right to occupy property for a certain period, in exchange for which the tenant agrees to tender payment in money otherwise
2
Q
missives of let
PS SUPPLY CHAIN SOLUTIONS V GLASGOW AIRPORT LTD
A
a contract for lease. exchange of offer and acceptance. sometimes the missives themselves may constitute the lease there is not further lease doc. if there is one it does not necessarly supersede all the terms of the prior missives
3
Q
LEASE V LICENCE
A
licence is a contract falling short of a lease where by not the heritage itself but a right to use a particular part of it or to put a particular part of it to some use is granted
4
Q
st Andrew forrest lodges v grieve
A
indicators of a lease was exclusive possesipon need objective not subjective
5
Q
joint administrators of rangers plc noters
A
sold season tickets in advance. l. hodge held it wasn’t an effective trust. STA didn’t create a real right in relation to the seat thus not a lease BUT COULD BE CHARACTERISED AS A LICENCE
6
Q
parites to a lease=
A
must be agreed and properly designed land lord or tenant may be joint parties . may be natural or legal persons may be trustees
7
Q
subjects =
A
must normally be corporal heritable property - land build and/or buildings
movable property contract is hire
corporeal heritable property can be fishing/ hunting rights
8
Q
andert ltd v j&j johnstone
A
must be clearly id. possibility of reffering to extent of tenants fpossesion.
heardis hill from near main
held to be suffficiant as title deed able to specify the description of the property
9
Q
exclusive possession crucial
A
YES, unless lease of hunting, fishing or mineral
10
Q
certain rent
A
maybe a in money terms or in kind or services. may be ascertained be refernced to mechanised.
may nominal sum
for private residential tenancies introduced 2017 by private tenancies act 2016nif rent prov is removed or otherwise ceases to have effect this does not invalidate the lease 2016.4b
11
Q
tak
A
lease
12
Q
taksman
A
tenenment
13
Q
maills
A
coin/ personal service
14
Q
ish
A
`finish the end of the lease term is the end of the elease
15
Q
renauciation
A
deed of renauciation with concent abondenment without concent
16
Q
Shetland island council v bp petroleum
A
negotiation not concluded agreed the duration still no rent raised slc action for declaration and had to be a fair rent cant fix rent for long lease. held can set annul tenancy as fexed rent
17
Q
glen v roy
A
occupant of subject belonging to another mau be presumed to occipy as tenant and be bound to pay annual value or market rent
x occupied his fathers flat. father dies. passed to heritable creditor. who claimed the motgage. x argued father given permission to occupy rent free. presumption BUT must pay market rent as unable to prove that x was granted flat occupation for free.
18
Q
GTW Holdings v Toet
A
liable owner in unjustified enrichment
19
Q
Secretary of state for defence v johnstone
A
RAF sep wife stay on in a house for more time then allowed she argued that she should only have to pay service rent not market value. HELD she stayed without permission = market rent
UNJUSTIFIED ENRICHMENT
20
Q
carruthers v Irvine
A
as long as the grass growethe up and the water runneth down
21
Q
welwood v husband
A
999 years
22
Q
s.67 2000 abolition feudal tenure
A
there is a prohibition on long lease of more than 175
23
Q
long lease act 2012
A
converted most ultra long lease to ownership
24
Q
land tenure reform act 1974 s8-9
A
prohibits long lease of plus 20years of private dwelling house not to private residential tennancy
25
gray v ed university
lease of india build agreed date of entry NO FAIRM MARKET RENT BUT NO PRECISE FIGURE AGREED IH- NO CONSENSUS IN IDEM = NO LEASE
if other cardinal elements of the lease present and tenant entered into pos then duration of one year implied
26
Wallace v simmers
they had a right to occupy as long as daughter desired farm sold HELD OFFSIDE GOALS RULE DIDNT APPLY AS JUST HAD A LICENCE SO DID NOT BIND THE PURCHESOR . held the land sold the tenants no longer had right to occupy
27
Scottish residential estates v henderson
examples of cottage occupy in the letter you and sons may use until you require it.HELD a revocable licence. NO INTENTION TO CREATE A LEASE
28
wight v newton
court could settle points that could not be agreed this is NOW WRONG LAW NOW COMMON LAW STEPS IN TO REGULATE.
29
conferining a real right wirnting
lease = a contract it may confer a real right upon the tenant good against the successors. thus leases = hybrid of REAL AND PERSONAL RIGHTS
ROWA s,1(2)(b) 2(1) FOR ONE YEAR NOT IN WRITING.
DOES NOT APPLY TO PRIVATE RESIDENTIAL TENANCY S.3
6 month lease no writing 2 years = writing
witness and reg deed in land reg OR council of session
30
ADVICE CENTRE FOR MORTGAGES V MC NICOLL
CONFERRING A REAL RIGHT ORALLY.
stat. personal bar= s.1(3))applies only to 1(2a) and 1 (b) if lease is obl
1(2b)- does apply, 1(3) doesn't apply as it is a real right
if the parties enter into lease and entry rent is paid BUT no docunmnt conforming to the requirement of s.2 is executed the leased will be construed as an ANNUAL lease renewable by TACIT RELOCATION
31
short lease
external act-
20 years on the dot = short
possession under the 1449 act leases law not shooting
32
birbeck v ross
```
short lease EXTENERNAL ACT
cannot have a real right of shootings cannot lease them contractually
FISHING however fall under 1449 act
inland freshwater fishings
salmon fishings
CAN LEASE AS A SEP TENEMENT
```
33
mann v houston
short lease EXTENERNAL ACTthere must be a specific continuing rent. grassum NOT acceptable
THERE MUST BE AN ISH. thus long lease for 999 is covered. a lease for so long as …. water runeth is valid BUT would not confer a real right under 1449
34
bell principles
short lease EXTENERNAL ACTTENNENTANT MUST HAVE ENTERED INTO POS OF THE SUBJECTS AND POS MUST BE NEUTRAL OR CIVIL(pos by a rep) (without pos no real right)
35
millar v macrobie short lease
short lease EXTENERNAL ACT where the land lord sells prior to the lease.
incoming tenant had date of Whitsunday to enter shortly before hand and allowed to do some agricultural prep. sowed crops ect.
whilst this went on land lord sold land.
new owner challenged the lease the tenant argued that they ahad pos limitied acts of working = insufficient not MATERIAL ENOUGH TO COUNT AS A MATERIAL POS.
Fatal flaw evn so the work was carried out pre entry date. the lease wss valid from entry date. SO TIMING WAS OUT. DIDNT COUNT AS TENNANT ANYWAY
36
1449 act
if the tenant meets all the conditons laid out in the 1449 act then they can have areal right without needing the lease to be reg/ recorded
37
long leases def
OVER 20YEARS must be reg in land reg NOT made real by pos reg of leases act 1857 s.20C
OLD LAW OF SAISINE=formally self probative through regin saisine. recording not cumpolsory. BUT STILL RELEVANT AS 99 YEAR LEASE GRANTED IN1950
38
millar v macrobie long lease?
THE OWNER KNOWS THERE IS A LEASE WHICH HAS NOT YET BEEN RECORDED OR REG- long lease offside goals rule
this was envoaked. LEASE DID NOT APPLY . pyrameters very uncertain
39
GYLE SHOPPING GENERAL PARTNERS LTD V MARKS AND SPARKS
PRO INDIVISO SHARE OF THE LAND
MARKS AND SPARKS OBJECTED TO PARKING SPACES FOR PRIMARK SHOP. ARGUED THAT THEY WERE PART OF THE LEASE TO M&S.
OH= NO REAL RIGHT OF PRO INDIVISO SHARE IT WAS A PERSONAL RIGHT NOT A REAL RIGHT FRO CONCIL COULD NOT ENFORCE IT AGAINST LATETR OWNERS
40
TURNER V NICHOLSON
THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
tenement @ the end of lease would get a payment for imporvements if they sold property this agreement = not inter naturalia
41
BISSET V MAG OF ABZ
THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
999 year lease at the end option to sell does not bind the sucessor
42
DAVIDSON V ZANI
a successor land lord held bound on the basis of the offside goals rule BUT this case is OLD LAW
43
ADVICE CENTRE FOR MOTRGAGES V MCNICOLL
THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
offside goals rule doesn't apply
44
GIBSON V ROYAL BANK
EFFECT ON REAL RIGHT SUCCESORS THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
Not lease directly suggests it does bind
45
OPTICAL EXPRESS V MARKS AND SPARKS
EXCLUSIVITY AGREEMENTS EFFECT ON REAL RIGHT SUCCESORS
THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
OE the only optitions in the gyle centre held NO INTER NATURALIA
campbell v watt reach opposite conc.
46
DAVIE V STARK
EXCLUSIVITY AGREEMENTS EFFECT ON REAL RIGHT SUCCESORS
THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
bind sub cred prior to real right of lease you will not be affected by a sub sec. if std sec becomes a real right first then cred is entitled to have the lease set aside if no consent from CRED schedule 6
47
TRADE DEVELOPMENT BANK V WARRIENER& MASON
EFFCT OF REAL RIGHT ON HERITABLE CRED BINDS SUB CRED BUT PRIOR CRED CAN HAVE LEASE SET ASIDE IF THEY HAVE NOT CONSENTED TO IT.
allows offside goals rule long lease Lanarkshire reg in land tenants had greanted a sub lease without consenting Banks permission LEASE NOT BINDING as BREACH OF OFFSIDE GOALS RULE leas was not bind on the bank as breach of st consition 6.
BAD FAITH ON PART OF SUB TENENANT NEEDED TO BE REG THE BANKS ST SEC MUST BE REG AS WITH REG THERE IS A PRESUMMPTION THAT THE SUB TENNANT KNEW
48
TRADE DEVELOPMENT BANK V CRITTICAL WINDOWNS
OFFSIDE GOALS EFFCT OF REAL RIGHT ON HERITABLE CRED
lease was assigned. the assignor granted a std sec under a lease before assignation was complete HELD bank was in bad faith as the bank hasd KNOWLEDGE of std se and ASSIGNATION. SO assignation will go ahead but std sec will be reduced
49
ross v duchess of Sutherland
THESE MAY BE ENFORCABLE AGAINST THE NEW LAND LORD BECAUSE THEY ARE INTER NATURALIA OF THE LEASE OR MAY BE PERSONAL TERMS.
```
lease = 12 per annum
actting as ground officier
estate sold
no need for ross
argued he should be able to stay as he could still work.
```
helfd tnot an internaturali did not bind succesor
50
rights and obls of the parties common law
residential and agricultural leases detailed stat
| BUT commercial lease absence of specific terms the common law IMPLIES certain obls
51
mars pension trustees ltd v country properties & devlopment
lease must make it clear thay the parties intent to exclude common law clause says nothing whether contained in lease or otherwise will be deemed as warrenty
THIS WILL BE DEEMED TO OVERRIDE COMMON LAW AS LONG AS IT IS CLEAR
52
possession of the subjects rights and obls at common law
land lord obliged to put tenant in pos of the subjects and to maintain him in pos through the term of the lease
tenant is obliged to enter into possession and to occupy and use the subjects.
Landlord must give tenant possession of all the subjects of let. landlord may not encroach upcroach upon tenant possession and must prevent total or partial eviction
53
graham &black vstevenson
tenant if fails to enter in possession = material breach
hotelier took a lease of another nearby hotel with intention of closing it and wiping out the competition HELD NO IF TAKE IT ON THEN USE IT
54
blair trustco v gilbert
tenant if fails to enter in possession = material breach
binds to reside on said land for reasonable short periods tenant in material breach as IN PRISON FOR CULPBABLE HOMICIDE LAND LORD BRING TENANCY TO AN END
55
mickel v mcCoard
tenant who breaches obl will be liable for damage usstained to the property due to non occupation
vacant for 2 weeks in weeks did not turn off water pipes and they burst tenant liable
56
wightman v wright
plenishings right
where the land lords hypothec applies the tenant is bound to plenish or stock the subjects
tenant not sufficiently furnished historical interest bad acts s.208
57
co-op insuranc society ltd v halfords
plenishings right
| ab interdict may be sought to prevent displacement
58
purposes of a let
land lord is onliged to provide subjects reasonably fit for the purposes of the let AND
tenant is obliged to use the property only for the purposes of the let
59
nb storage co v steeles trs
purposes of a let
standard is not one of perfection
drainage stystem could be updated but was not required by law std NOT PERFECTION
60
Wolfson v forrester
purposes of a let
urban subjects must be wind and water tight
water from pipe leaked from hole into premisies. the hole in the wall was for a gas pipe to get in. HELD IT WAS WIND AND WATER TIGHT ONLY CAUSE PROBLEMS THAT TENANT COULD SEE WHEN THEY MOVED IN
61
glebe sugar refining v paterson
purposes of a let
LANDLORD STANDARD IS NOT ONE TO PERFECTION
standard is assuming reasonable use by the tenant
land lord only need to provide a building for the weight for ordinary commercial usage tenant obligation not overload
62
mercer v esk valley railway
purposes of a let
if tenenanrt breaks obligation they are said to invert pos
attempt to introduce railway onto other subjects
bring railway onto land let from paper mill this was mill
63
british linen bank vpurdie
purposes of a let
if tenenanrt breaks obligation they are said to invert pos
unauthorised aleteration may count as inversion
tenant attaches displays to the outside of the shop which was not allowed = inversion
64
state of the subjects
land lord obliged to carry out repairs
| tenant is obliged to take reasonable care of the property
65
gunn v national coal board
land lord must maintain the urban lease in a tenantable and heritable condition durting the term of the lease making such repairs as necessary
rising damp land lord failed to deal with it
66
Wolfson v forrester
land lord is NOT required to effct repairs in respect to damage caused by no one liable
the action of a third party
the egligence of a tenant (damage of a tenant = breach of corresponding obl to take reasonable care)
LANDLORD OBL is not warranty so no breach until matter is drawn to landlord attention
evn not wind and water tight brought to attention of landlord and does not act
NOT A WARRENTY
CONTINUING OBLIGAITON
67
lowe v quayle munro
commercial lease almost always expressly excludes the landlord repair
68
mickel vmunro
TENANT a property burdened by a commercial lease without such full repairing obls would be almost impossible to sell
69
RETAIL PARK INVESTMENTS V ROYAL BANK OF SCOT
SPECIFIC IMPLEMENT/ INTERDICT
hole in the wall can get a specific implement to get a keep open close
ENGLAND
has gone ONLY DAMAGES
70
DOUGLAS SHELF SEVEN LTD V COOP WHOLESALE
DAMAGES
| FOR BREACH OF A KEEP OPEN PROV
71
COWIE V MARTALO
ACTION FOR PAYMENT
Most likely to be by landlord for recovery of unpaid rent
enforced by diligence attachment, arrestment
summary diligence
if lease contains clause like this: the parties hereto consent to reg hereof and of all determination or decrees of any arbiter appointed bereunder for preservation and execution
ARRESTMENT money like bankruptcy no need for court useful for commercial lease
for preservation and reservation of tenement the consetnt to doc needs to be reg.
72
CRIEFF V HIGHLAND GATHERING LTD V PERTH AND KINROSS
RECISSION
contractual remedy to bring contract to an end
depends on contractual breach
materia;l breach by TENANT
landlord wanted to develop sites council refused permission. land lord sought to terminate lease council not maintained land OH not accept not demonstrated that lack of repai= MATERIAL BREACH(restrictions on recision by land lord = law refor 1985)
73
DAVIE V STARK
RECISSION
LANDLORD BREACH
could not allow anyone in the same trade tennament of the same building. HELD THE EXCLUSIVITY CLAUSE = MATERIAL BREACH BY LAND LOROD
74
SKENE V CAMERON
RETENTION
self help remedies
may be carried out if material breach
lease holder may retain the rent if material breach HOWEVER the longer the conduct goes on for before retaining the rent, the less likely court will accept retention. argue that IMPLIEDLY ACCEPT CONDUCT
75
REDUCTION IN RENT?
entitlement to abatement in rent if suffers partial eviction
76
lien
implied security
77
frustration
burnt down- comerical lease =lease continue
| - residential lease= lease terminate
78
legal irritancy define
In absence of other provision, available on non-payment of rent for 2 years (agricultural tenants - 6 months). Tenant may purge until extract decree obtained.
79
conventional irritancy def
Example of trigger events in current commercial lease irritancy clause:
non-payment of rent for 21 days, failure to fulfil any other obligation under lease, tenants going into liquidation or having receiver appointed, tenants having administration order made against them, tenants becoming apparently insolvent or signing trust deed for their creditors.
80
audiglen ltd v SCOTEC inductries
non-payment of rent for 21 days, failure to fulfil any other obligation under lease, tenants going into liquidation or having receiver appointed, tenants having administration order made against them, tenants becoming apparently insolvent or signing trust deed for their creditors
81
DOLLAR LAND LTD v CIN PROPERTIES
Landlord can keep windfall benefits from conventional irritancy
82
HMV FIELDS PROPERTIES V BRAKEN SELF SELECTION FABRICS
Payment of and (acceptance of payment) of rent after irritancy proceedings have begun
landlord served notice for various triggers events tennemant stayed in occupation and paid rent land return rent land lord return rent immediately apart from 2 for which took about 6 months want to waiver the right to irrantcy INSUFFICIANT IRRANTANCY RIGHTS
83
AUBREY INVESTMENTS V DS CRWFORD
Payment of and (acceptance of payment) of rent after irritancy proceedings have begun
tenant went into receivership negotiations with the landlord were ongoing. the land lord was receiving rent. negotiations broke down but land lord not waived the right of insolvency as accepted the rent as a position of negotiating assignation
14 day WARRENTY notice FAIR AND REASONABLE LAND LORD NOT COMPY. NOT VALID IRRITANCY NOTICE
84
TAWNE OVERSEAS HOLDING LTD V NEWMILN FARMS
No purging of conventional irritancy until Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 ss 4-7:
• Monetary breaches
• Non-monetary breaches.
Failure to comply with statutory rules will entail that the lease is not properly irritated: see, for a failure to comply with the rules
TOOK PROCEEDINGS TO SOON SO THEY WERE INVALIDATED
85
Maris v Banchory Squash Racquets Club Ltd
Test of “fair and reasonable” landlord is applied at the time of termination of the lease
86
Jute Industries Ltd v Wilson & Graham Ltd
Action of removing at common law
| Failure to remove at ish. Recovery of violent profits
87
ALIENATION
At common law, is landlord’s permission to assign/sublet required? Yes, if delectus personae exists:
if lease silent then depends on delectus personae presumed NOT FIXED = 20 years
PRESUME NO DELICTUS PERSONAE
• delectus personae is presumed in agricultural leases of ordinary duration (not fixed), and furnished house lets;
• delectus personae is not presumed in agricultural leases of extraordinary duration, or unfurnished urban lettings.
Tenant’s permission is not required for landlords to alienate their interest (i.e. by sale
in assignation the t1 disappears where as in subletting you still have the covenant.
88
Scottish Ministers v Trustees of the Drummond Trust
Delectus personae can affect juristic persons
| On assignation, previous tenant’s future obligations come to an end
89
Lord Elphinstone v Monkland Iron & Coal Co
“The assignation of his lease by a tenant who has power to assign has the effect of making the assignee sole tenant from the time he takes possession of the subject of the lease, and of discharging the cedent from future liability
50
to the landlord
90
1449 Act,
possession gives assignee real right
91
1857
have to reg the assignation
92
termination at ish
tenant obligatipon to depart is cautious view and HAVE TO HAVE NOTICE TO QUIT
specific obligation on tenant to quit may be included
93
terminmation agricuktural
not less than 1 year, and not more than 2 years, prior to ish
94
termination other
(ii) other leases of land exceeding two acres: as above, save leases less than 3 years where minimum is six months.
95
termination all
(iii) all other leases: greater than four months: minimum 40 days’ notice; four months or less: one third of duration of let (N.B. dwellinghouses - minimum four weeks)
96
esso properties v dresser uk ltd
computation of time can cause problems when terminating a lease
tenenments stayed on for 2 months beyond what they should have liable for double rent = pay rent
97
tacit relocation
if notice to quit is not severd by either party and ish passes lease does not end
In lease under one year the period again (calc periods cautious view go longer rather than shorter 42 days 40 days of service and service day of ish do 45 before
tacit relocate if parties keep quiet keep lease.
in leases of one or over one year
process continues indefinitely until notice procedure is used
98
macdougall v guidi
TACIT RELOCATION
| miss a period of notice to quit sc can contract out of it
99
signet group v j clark retail properties
unilateral actings of tenant sufficient to exclude tacit relocation
tenant sent out notice to quit states close business= sufficient conduct BUT
actions exclude tacit relocation
DID NOT COMMUNICATE TO LANDLORD ACTS.
NO TACIT RELOCATION
had they communitcated that shop was closed within notice to quit perid = tacit relocation
100
premature termination
```
break clauses
frustration
recission
irritancy
confuisio
death of tenant
s.16 suc scot act
```
101
trygort v uk home finance
break clauses landlord only, tenant only, mutual
| such a clause may make its exercise by the tenant conditional of the tenant not being in breach of the lease
102
tay salmon fisheriesco v speedie
frustration can either be rei interis (total destruction)
constructive distruction
or as in this case a superveneing impossibility
103
RESIDENTIAL LEASE DEF
PRIVATE AND PUBLIC SECTOR
PRIVATE SECTOR LEASE- must reg with local authority antisocial behaviour act s.24
ASSURED TENNANCIES- 1989 2017
SHORT ASSURED TENNANCIES- housing scot act 1998
gmonths min
PRIVATE RESIDENTIAL TENNACIES- 2016 act
DUTY ON LAND LORD TO MEET REPAIRING STANDARD - housing scot act S.14 and 13 2006
104
THEM PROPERTIES V GLASGOW CITY COUNCIL
HMO licencencing residencial lease private
rejection of tenenment students in falt through wardrobe out of window ect HELD LEASE REDUCED DUTY TO CONTROL STUDENTS LOCAL AUTHORITY WILL STEP IN IF YOU DONT
105
SOUTH LANRKSHIRE V MACKENNA
```
public residential lease
Scottish secure tenure
housing act 2001
landlord is local authority reg social landlord
short Scottish secure tenancies
art 8 held to be compatable
```
106
AGRICULTURAL LEASES
salvenstonbe v riddle human rights provision read down the stat.
agrigultrual holdings act 2003
corfers 2003
small landholders 1911- small land holders
small landholders- stat small tenants
crofters -cottars
107
commercial def
They are governed by relatively lengthy documentation agreed by the parties and much may depend on market conditions and relative negotiating strength. Some law firms have produced standard documents for related transactions such as assignation and rent review, but not for the lease itself
108
commercial types of clauses
(i) payment of rent (Scottish quarter days: Candlemas (28 Feb), Whitsunday (28 May), Lammas (28 August), Martinmas (28 Nov))
(ii) payment of all outgoings
(iii) payment of VAT
(iv) compliance with statutory requirements
(v) to maintain and repair
(vi) to paint
(vii) to leave in good repair
(viii) to permit access
(ix) to pay insurance premiums; not to endanger insurance
(x) not to make alterations without prior (written) approval
(xi) permitted user
(xii) not to affix signs without prior approval
(xiii) not to pollute
(xiv) not to deposit goods or materials
(xv) not to cause nuisance
(xvi) not to overload electrical circuitry
(xvii) to observe all real burdens etc.
(xviii) to allow landlord facilities to relet/resell
(xvix) to indemnify landlord against loss
(xx) to pay costs in connection with lease
109
commercial land lords obl
Generally much less than tenant. May include:
(i) to insure [tenant may have to meet premiums - see (viii) above] (ii) “Under the reservations, conditions and others herein contained or referred to, to warrant lease to tenants against all hands and against all mortals.”
May well be no others save the above - will depend on relative bargaining powers of the parties. In cases where the subjects let are part of a larger development (e.g. a shopping centre) the Landlord may also bind itself in the lease not to let other units in the development to a business of the same type as that carried on by the tenant.
110
warren james v overgate
exclusivity clause for a jewler breached by another. only one jewlry store of that kind to be allowed to trade
HELD OVERGATE IN BREACH OF EXCLUSIVITY CLAUSE
111
commercial consent to reg
re summary dil
| expressly preservation and execution
112
commercial arbitration
common for rent review rather than court
113
commercial rent review
commercial leases will have a rent review CLAUSE typically coming into play every 5 years
they are essential as THERE IS NO IMPLIED RIGHT TO A RENT REVIEW
lease lasting 25 years
existing rent OR open market rent
quasi judicial arbiter hearing submissions for both sides OR an expert will maintly carry out rent valuation
CANNOT APPEAL AN EXPERTS OPINION UNLESS CONTRACT STATES
114
united scientific holdings v burnley bourough
Entry date 1015 presumption is rebutted= time limit not essential = ENGLAND
115
charterhouse square finance co ltd v A& J MENSWEAR
provisions agreed for time limit agreed for review presumption rebutted
PRESUMPTION CAN BE REBUTTED IF BY CONTRA INDICATIONS IN THE LEASE
116
visonhire ltd v britel fund trustees ltd
time is not of the essence for rent reviews
117
awg group ltd v hcp 11 properties
failure to trigger review process has resulted in the loss of a right to review
101 GP 20 year lease began 2004 5 year rent review.
2014 delay.
land lord issued a rent invoices with the wording without prejudice to rent review on them.
then 2015 the wording was dropped
lad loird tried to enforce rent review
tenant argued they had waived the right
l. Docherty argued that sales brochure stating nect rent review was NOT meant for the tenants SO NOT APP FURTHER the dropping of the PHRASE TO MEANS THATTHEY HAD WAIVED THE RIGHT IS ABSURED
118
Amherst v james walker goldsmith &silversmith
Open Market Rent is not agreed or determined on or before the review date in question, the Tenants shall pay a provisional rent at the rate payable immediately prior to the review date in question and, upon the amount of the reviewed rent being agreed or determined, the Tenants shall, forthwith on demand, make good and pay to the Landlords any deficiency or underpayment, together with a sum equal to interest …
6 YEARS GONE BY TOO LONG FOR RENT REVIEW”
ENGLISH
119
Manchester associated mills ltd v Mitchell s&butler retail
valuation methods for rent review • index-linked rent • turnover rent:
120
marfeild properties ltd v sec of state for the environment
Typically found in office blocks, industrial estates, and especially shopping centres. • May include: cleaning of “common parts” refuse collection, security provision, heating, etc. ‘Sweeper’ clauses
121
landlords hypothec
Bankruptcy and Diligence etc. (Scotland) Act 2007 s 208.
Landlord’s security over moveables kept on the subjects.
Rent covered? Any rent unpaid but due. Covers such unpaid rent for so long as the rent remains unpaid and due – see s 208(8).
Moveables covered? invecta et illata owned by the tenant.
122
assignation and subletting
Typical commercial lease may include:
(i) a prohibition against assignation or subletting; or (ii) a prohibition against assignation/subletting except to a group/associated company; or
(iii) normally, 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
123
renfreq district council v ab lesiure
ASSIGNATION AND SUBLETTING unreasonably withheld payment of airs rent = consent for assigntation
HELD reasonable landlords wanted a 12 mINITE RENT REVIEW + 3 YEAR RENT REVIEW. HELD unrealsonable
124
lousada &co v JE LESSER
ASSIGNATION AND SUBLETTING unreasonably withheld
| consent to standing rent review HELD REASONABLE
125
burger king v Rachel charitable trust
ASSIGNATION AND SUBLETTING
if land lord gives several independent reasons for refusing consent so long as one of these is reasonable that renders refusal to consent reasonable
did not know that R had a charitable trust to make the decicion and withhold consent until they saw the assignees accounts
126
burgerking v castlebrook holdings
ASSIGNATION AND SUBLETTING
information needs to be given to assess the new tenant/ sub tenant
landlords need to guage matter properly weighing the protection of ther interests with commercial attractiveness
