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Flashcards in Leases Deck (62)
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1

What is a lease?

A term of years absolute/ or a legal lease is a legal estate for a fixed period of time.

s205(1) LPA 1925 - any period of time can constitute a lease

2

Essential characteristics of a lease?

Street v Mountford:
1.) Exclusive possession
2.) For a determinate period
3.) For rent or other consideration
4.) For a term less than the grantor

3

What is a license?

-Merely a personal right to occupy a piece of land
-Not a right in rem and terminated very easily

4

1.) Exclusive possession

- The right to use land to the exclusion of all others including the landlord although may reserve the right to enter on certain occasions
-

5

2.) Determinate period

-Must be a certain beginning and a certain end
-Land may be held on a periodic tenancy

6

Lace v Chantler

Lease was for the duration of the war, so, therefore, had no definitive endpoint and was not for a determinate period

7

3.) Payment of a rent

Street v Mountford:
"exclusive possession for a term at a rent"
HOWEVER
Ashburn Anstalt v Arnold:
"...rent is not necessary for the creation of a tenancy. That conclusion involves no departure from Lord Templeman's proposition..." - rent can be indicative but not required

8

4.) Term less than that of the grantor

Cannot be greater than the time the grantor is holding it for.

9

Types of leases and tenancies:

1.) Fixed term leases:
- Fixed period of time and created expressly
2.) Periodic tenancies:
-Arise expressly or by operation of law
-Capable of lasting indefinitely (until terminated by notice)
3.) Tenancies at will
-Cannot be a legal estate and may be ended without notice
4.) Tenancies at sufferance
-Arise only by operation of law
5.) Tenancies by estoppel
6.) Perpetually renewable leases
-Allows tenant to renew on expiry
-Provided intention is to create a perpetually renewable lease

10

Creation of a legal lease more than 7 years in duration:

-Grant by deed then registration of leasehold title

-s52(1) LPA 1925: by deed
s27(2) LRA 2002: disposition completed by registration
s4(1)(c)(i) LRA 2002: more than seven years

11

Creation of a legal lease more than 3 years in duration:

-Grant by deed
s52(1) LPA 1925: void unless made by deed

12

Creation of a legal lease less than 3 years in duration:

-Orally or in written
s54(2) LPA: must take effect in possession, at best rent reasonably obtainable and no premium is charged

13

When does an equitable lease arise?

1.) Defective grant or transfer
2.) Failure to apply for registration
3.) Grant of lease by holder of equitable estate
4.) Contract to create or transfer a lease -
- Walsh v Lonsdale

14

Assignment of leases and tenancies

-Legal assignment of a lease must be by deed
- ALWAYS even if less than three years
- defective assignment may take effect in equity

15

Walsh v Lonsdale

Facts: - 7 year lease over a mill, with a clause allowing rent to be paid upfront
-Lease not granted by deed
-L demanded a years rent, which was not paid so they seized the property

L.P: Doctrine created: Equity will regard as done that which ought to be done

16

Street v Mountford

Facts: - D granted C right to occupy rooms but expressed it was only a license

Judgment: Court held it was a lease

L.P: -Lord Templeman: "The grant of land for a term at a rent with exclusive possession"
"If the agreement satisfied all the requirements of a tenancy then the agreement produced a tenancy"
-Quote about fork and not meaning to make one

17

A.G Securities v Vaughan

Facts: - D had a long lease over a building and granted different licenses to different individuals under independent agreements
-Licensees tried to claim collective lease therefore being protected by statute

Judgment: could not claim


L.P: A shifting population could not be joint tenants or a lease and therefore aren't entitled to protection

18

Antoniades v Villers

Facts: -Unmarried couple made to sign seperate agreements described as licenses and a clause stating the owner reserved the right to occupy the flat

Judgment: Considered to be tenants absolute in joint possession

L.P: -Cannot contract out of the Rents Act else it would be pointless

19

What is a covenant?

- A term of the contract concerning the rights and obligations of the parties to the contract
-relate to the use and enjoyment of the land
-may be express or implied

20

Express covenants of the tenant:

1.) To pay rent
2.) To insure
3.) To use the premises only for the stated purposes
4.) To repair
5.) Not to be a nuisance or annoyance to neighbours
6.) Not to assign or sublet:
-Absolute or qualified
Absolute: Landlord can be as unreasonable as they want
Qualified: Cant be unreasonably withheld

21

Implied covenants of the tenant:

If lease is silent, obligations on the tenant may be implied
1.) To pay rent
2.) To pay rates and taxes
3.) Not to commit waste (voluntary or permissive)
4.) To use the property in a tenant like manner
5.) To allow the landlord to enter

22

Express covenants:

1.) To allow quiet enjoyment:
-doesn't necessarily mean noise
-only covers substantial interference - Southwark LBC v Mills
- applies to acts done by landlords - Kenny v Preen: and acts done by people deriving title from the landlord
2.) To grant an option to renew to the tenant
3.) To sell the reversion (option to purchase)
4.) Not derogate from the grant

23

Implied covenants of the landlord

1.) Quiet enjoyment
2.) Not to derogate from the grant
3.) To repair/ ensure fir for human habitation

24

Liverpool v Irwin

Landlord may have a duty to maintain the common parts of the premises

25

s8 Landlord and Tenant Act

-To keep premises fit for human habitation where house is let at a low rent

26

Remedies for breach of repair covenant by landlord

-Damages
-Order for specific performance
-Common law right to recoup reasonable costs from future rent

27

Liability of original tenant and landlord before 1/1/96

Both governed by privity of contract so remain liable to each other

28

Liability of Original Tenant before 1/1/96

Privity of contract still applies except in:
-Excluded in lease
-Perpetually renewable leases
-For increased rent
-On re-grant
Indemnity can be express/implied

29

Liability of Original Landlord before 1/1/96

Privity of contact still applies except if:
-Excluded in the lease

30

Swift Investments v Combined English Stores

Touching and concerning the land:
1.) Does covenant benefit any owner of estate? (not just original tenant)
2.) Does it affect the nature, quality mode of user or value of land?
3.) Is the covenant expressed to be personal?

31

Position of assignee before 1/1/96 - Legal

Does benefit and burden pass?
1.) Privity of estate
2.) Must touch and concern the land

32

Position of assignee before 1/1/96 -Equitable

Does benefit and burden pass?
No privity of estate
Can pass benefit but not burden

33

Position of new landlord before 1/1/96

s141 LPA - Passes benefit (right to sue)
s142 LPA - Passes burden (obligations to perform)

34

Position of subtenant before 1/1/96

- No privity of estate
- No privity of contract

35

What governs most of the positions now?

Landlord and Tenant (covenants) Act 1995

36

Liability of original tenant after1/1/96

s5
-Released
-Can be asked to guarantee the nest one by authorised Guarantee Agreement

37

Liability of original landlord after1/1/96

s6,7 and 8
-Remains but only to current tenant
-Can ask for release

38

Position of assignee after1/1/96

s3(2)
-Benefits and burdens pass to the assignee

39

Position of New Landlord after1/1/96

s3(3)
- Benefits and burdens pass to new landlord

40

Position of sub-tenant after1/1/96

s3(5)
-Landlord can enforce a restrictive covenant against the sub-tenant

41

If tenant has breached by non-payment of rent?

If property is residential: No right to forfeit - Protection from Eviction Act 1977

If not: does the lease dispense with the demand?
or does s210 Common Law Procedure Act apply?

42

s210 Common Law Procedure Act

-Rent is at least 6 months in arrears
-Insufficient goods to levy distress

43

If s210 Common Law Procedure Act does apply or the lease dispenses with the demand?

If yes: Peaceable re-entry or application to court for possession order + LEASE ENDS
If no: Serve formal demand per Duppa v Mayo then do above

44

If tenant has breached other covenant?

Serve 146 notice:
-Specify the breach
-Require remedy
-Require compensation

45

Did the tenant remedy the breach?

No: Peaceable re-entry or application to court for possession + LEASE ENDS

Yes: Lease continues

46

Hammersmith LBC v Monk

A periodic tenancy will continue until either party serves notice to quit

47

Hoffman v Fineberg

"No breach can ever be remedied because there will never be a point in time where the covenant wasn't breached" - 146 notice now contravenes this

48

Perera v Vandiya

Authority for allowing quiet enjoyment

49

Moule v Garrett

Authority for claiming against the most recent assignee

50

Spencers case

Rule for touching and concerning the land originated in this case but then built on by Swift Investments

51

Argyll stores

Keep open covenants are NOT allowed -> cannot force a business to remain open

52

Hill v Barclay

Old general rule that no specific order for repair but has since been overruled

53

Fuller v Happy Shopper Markets

Warned landlords about levying distress as it interferes with art 8 of human rights

54

Matthews v Smallwood

Landlord must know that a breach has occurred in order to waive it

55

Thomas v Ken Thomas

Landlord can reject the payment if it's just been paid into their bank account

56

Duncliffe v Caefelin

Right to take action passes to the new landlord with assignment of reversion

57

Smallwood v Shepards

Authority that a legal lease does not have to be for at least a year:
Legal lease can be for three consecutive bank holidays

58

Seagull v Thosby

Where a landlord accepts rent, knowing a breach has occurred he forfeits his right to a remedy

59

Remedy of distress:

Abolished by The Tribunals, Courts and Enforcement Act 2007

60

Expert Clothing Service v Hillgate House

Important question of whether the harm to the landlord could be remedied

61

Billson

Can apply for relief at any point, even after re-entry

62

Aslan v Murphy

Landlord can keep a key for emergencies/ repairs and not negate exclusive possession