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Property Law and Practice > Lease Termination > Flashcards

Lease Termination Flashcards

1
Q

What are the different methods whereby a lease can be terminated?

A
  • effluxion of time
  • a break clause
  • surrender
  • notice to quit
  • merger
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2
Q

What is termination by effluxion of time?

A

Where tenancy without security of tenure comes to end on expiry of contractual term.

Landlord can require tenant to vacate the premises and can treat the tenant as a trespasser

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3
Q

What happens if the landlord consents to a tenant remaining in the property after the expiry of the term in an unprotected lease?

A

Tenancy at will created and if rent accepted then potential periodic tenancy

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4
Q

What is termination by break clause?

A

Clause which if exercised will lead to termination of lease before contractual term expiry.

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5
Q

Is a break clause effective with a protected tenancy?

A

Yes - if exercised by tenants

Only effective if landlord exercises it if not security of tenure so no.

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6
Q

What is notice to quit?

A

For periodic tenancies where either landlord or tenant gives notice that they intend for tenancy to end.

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7
Q

What happens with notice to quit and protected tenancies?

A

If tenant serves notice, then still effective

If landlord serves notice, then tenant can still hold over

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8
Q

What notice period is required for notice to quit?

A

Depends on length or periodic tenancy:

  • weekly period - 1 week’s notice (4 weeks for residential)
  • monthly period - 1 month’s notice
  • quarterly period - 1 quarter’s notice
  • yearly period - 6 month’s notice
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9
Q

When must notice to quit expire?

A

On first or last day of tenancy period

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10
Q

If a landlord serves notice on a tenant who has secured tenancy who then holds over, how can they get them to quit?

A

They must serve hostile section 25 notice supported by one or more of the statutory grounds

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11
Q

What is termination by surrender?

A

Tenant can give up leasehold interest to landlord.

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12
Q

What is the process for surrender?

A
  • express surrender requires a deed
  • premium may be payable
  • surrender by operation of law also effective and occurs where landlord and tenant act in a way that is inconsistent with continuation of tenancy
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13
Q

What happens if in advance of deed for surrender, there is an agreement to surrender?

A

Similar procedure as to contracting out of protected tenancies must be followed ie must be notice and declaration.

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14
Q

What is termination by merger?

A

Either tenant acquires the landlord’s superior interest or a third party acquires it

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15
Q

When can the landlord claim damages for breach and what can they recover?

A

For all breaches damages will be available.

Landlord can recover damages that put them back in a position they would have been in had it not been for the breach of covenant

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16
Q

When a landlord issue an action in debt?

A

Can do so to recover any debt, such as unpaid rent, service charge or insurance rent

Can only recover rent due in the six years before issue of proceedings

17
Q

Who can an action in debt be brought against?

A
  • tenant
  • former tenant if old lease or tenant gave authorised guarantee agreement
  • guarantor
18
Q

Is a landlord limited to recovering unpaid rent from a guarantor?

A

No - can go after them for any breach of tenant’s covenants

19
Q

How can the landlord use the rent deposit as a remedy?

A

Can draw on rent deposit if tenant is in arrears.

Tenant then has to top up deposit

20
Q

What is commercial rent arrears recovery and when can it be used?

A

Self-help remedy and can be used where:

  • the premises are purely commercial
  • a minimum of seven days’ principal rent is owed (cannot be used to recover service charge or other sums)
  • the lease has not been forfeited
21
Q

What are the requirements for using commercial rent arrears recovery?

A
  • landlord must appoint enforcement agent who has required certificate from court or is exempt (eg police officer)
  • seven clear days’ notice must be given of the intention to enter the tenant’s premises (clear days exclude Sundays and bank holidays)
  • notice must include certain details, such as amount of the debt and how to repay it, details of power to enforce the debt and contact details of enforcement officer
  • if notice expires without repayment of the debt, enforcement agent can enter premises and take control of goods belonging to the tenant up to value of debt owed
  • landlord must give further seven clear days’ notice if it intends to sell the goods
22
Q

Are equitable remedies eg specific performance and injunctions ever available for breach?

A

Theoretically possible but very unlikely

23
Q

What is forfeiture?

A

It is the right of the landlord to re-enter the premises and take them back from the tenant

24
Q

Is forfeiture an automatic right?

A

No - only permitted insofar as the lease permits it

Typically when tenant fails to pay rent, breaches other obligations of lease, or there is an insolvency event

25
Q

When can a landlord exercise forfeiture?

A
  • for non-payment of rent, as soon as lease allows
  • for other breach of obligation, landlord must serve a section 146 notice
26
Q

How can forfeiture be achieved?

A
  • peaceable re-entry by landlord
  • by court order for forfeiture
27
Q

What is a s 146 notice? What will it detail?

A

Notice of potential forfeiture

Will detail alleged breach and gives the tenant a reasonable opportunity to remedy it, failing which the landlord will be entitled to forfeiture

28
Q

When will the landlord waive their right to forfeiture?

A

When they act in a way that acknowledges the continuing existence of the lease.

Intention of the landlord is irrelevant

29
Q

What are examples of once and for all breaches?

A
  • non-payment of rent
  • an unlawful assignment or underletting
  • an insolvency event
30
Q

What are examples of continuing breaches?

A
  • failure to keep the premises in repair
  • breach of the user covenant
  • failure to comply with an insurance obligation
31
Q

If a landlord waives their right of forfeiture in respect of a once and for all breach, can they ever regain it?

A

No - once waived lost forever

32
Q

If a landlord waives their right of forfeiture in respect of a continuing breach, can they ever regain it?

A

Yes - for each the day the breach continues the landlord will regain it.

So if waived one day will regain the next

33
Q

What is relief from forfeiture?

A
  • Tenant may apply for relief from court (or any other party who derives interest in lease such as under tenant or mortgagee)
  • discretionary remedy
  • if awarded will be as if forfeiture never happened and court will aim to put parties in position they would have been in had forfeiture not happened
34
Q

When will relief often be granted from forfeiture?

A

Will likely be granted for non-payment of rent if tenant settles all arrears and landlord’s costs

35
Q

What additional steps may have to happen for forfeiture for breach of a repairing covenant?

A

If lease is for term of seven years or more and has at least three years left to run then tenant has 28 days to serve counter-notice meaning landlord must get leave from court to proceed.

Landlord has to advise tenant of this right in s 146 notice.

36
Q

When can a landlord issue proceedings for damages for breach of a repairing obligation?

A

Only after landlord has served a section 146 notice and given the tenant 28 days to serve a counter-notice

37
Q

How are damages to be measured in respect of breach of repairing obligation?

A

Loss of value to landlord’s reversion not the cost of putting the premises in full repair

38
Q

What is a Jervis v Harris clause?

A

Self help remedy for breach of repairing covenant that allows landlord to:

  • enter the property
  • carry out any repairs
  • recover the cost of doing so from the tenant which are to be treated as a debt so recoverable in full
  • no s 146 notice is needed

Property Law and Practice (12 decks)

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