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PP - weaker areas Flashcards

1
Q

Definition of “Development” (PP required)

A
  • Construction + building works
  • Material change of use
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2
Q

Matters that do NOT constitute “Development” (PP not required)

A
  • Internal alterations
  • Works that do NOT materially affect the external appearance of building
  • Changes of use within same use class

CIM

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3
Q

Matters that DO constitute “Development” but NO PP required under GPDO (permitted development)

A
  • Developments within the curtilage of dwelling home (e.g. small extensions)
  • Minor operations (e.g. painting exterior of building or installing CCTV)
  • Specified changes between use classes & certain changes from sui generis uses

CMS

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4
Q

Which type of tenancy, although it benefits from security of tenure, cannot be contracted out?

A

Periodic

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5
Q

Requirement for tenant to serve s 26 notice

A

Lease must be originally granted for more than 1 year

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6
Q

Difference in date concerned between s 25 and s 26 notice

A

s 25 - date of termination
s 26 - day before PCD

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7
Q

Modern quarter days

A

Modern quarter days:
a. 1 January
b. 1 April
c. 1 July
d. 1 October

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8
Q

Assumptions in rent review

A
  1. Willing LL & T
  2. Property is to be let with vacant possession
  3. T has complied with its covenants under lease
  4. Lease will be on same terms, excluding rent, but including rent review provisions
  5. If damaged or destroyed, premises have been repaired or rebuilt
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9
Q

Disregards in rent review

A
  1. Effect of T’s occupation on rent
  2. Goodwill attached to T’s business
  3. T’s voluntary improvements
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10
Q

What does Code say re user & planning

A

Lease should ONLY restrict change of use insofar as necessary to protect value of premises & any adjoining / neighbouring property of LL

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11
Q

s 19 protection re user & planning

A

No fine or increased rent may be charged as a condition of LL giving consent, UNLESS:
* The change of use also requires structural alterations (may charge lump sum or increase rent)

However, LL may charge legal / other expenses in giving consent, together with a reasonable sum RE loss in value to premises / neighbouring premises

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12
Q

What must LL do re alienation under s 19(1)(a)

A

LL must, within a reasonable time of written app:
a. Give consent, UNLESS reasonable not to
b. Give written notice of decision, specifying any conditions or reasons for withholding

usually 28 days

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13
Q

What are typical conditions for underletting

A
  1. Underlease on same terms as lease (i.e. covenants no less onerous than in T’s lease)
  2. Rent not less than rent payable under headless (or proportionate part if underletting part), payable at same times & subject to review
  3. Underlease excluded from Part II LTA 1954
  4. No further underleases
  5. Direct covenant
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14
Q

What will lease typically prevent T from doing re underletting

A

Underletting the premises…
1. Together with property that do not belong to LL
2. On payment of lump sum (as doing so means T not paying full market rent)
3. With a rent-free period beyond what is normal in that market

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15
Q

What should be sought re repair and new builds

A

Seek to exclude T’s liability to remedy inherent defects in design & construction

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16
Q

Restriction on alterations if not referred to in lease

A

Only restriction will be doctrine of waste
* i.e. T cannot carry out if they reduce the value of premises

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17
Q

What does code say re alterations

A
  • Should ONLY restrict alterations insofar as necessary to protect value of premises & any adjoining / neighbouring premises of LL
  • Lease of part  at least fully qualified covenant for internal non-structural
  • Lease of whole  at least no consent for internal non-structural alterations
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18
Q

Options for T if absolute covenant against alterations

A
  1. Try asking LL (no obligation to consider)
  2. Request a deed of variation to lease
  3. Proceed at risk of forfeiture
  4. Best option = s 3 statutory procedure
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19
Q

s 3 statutory procedure re alterations

A

1) T serves notice on LL with proposal to carry out improvements
2) If LL does not object within 3 months - T can carry out
3) If LL objects - T can apply for court’s permission to carry out
* Court will grant if the improvements:
i. Add to letting value of property
ii. Are reasonable & suitable to character of property, AND
iii. Will not diminish the value of any other property of LL

4) If LL offers to carry out works for reasonable increase in rent  T NOT obliged to accept
* But if T rejects, cannot then ask court for permission

5) T may even be entitled to compensation if improvements add to letting value of property using s 3

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20
Q

Does it matter if alterations reduce value of LL reversion?

A

No, however, LL may require reasonable compensation for any reduction in value of its reversion, payment of costs and reinstatement where reasonable

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21
Q

What do buyer’s sol and seller’s sol undertake re lenders

A
  • Buyers - to provide final form of certificate of title AND re mortgage money
  • Sellers - to redeem mortgage against property (NOT discharge)
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22
Q

Purpose of certificate of title

A
  • Confirms property is safe to lend
  • Confirms the charge will be registered (usually as first legal charge)
  • Confirms the buyer’s title to the property will be good & marketable
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23
Q

Purpose of report on title

A

1) Summarises material facts, identifies any issues and discusses possible solutions
* Sets out what investigations solicitor has undertaken
* Will state limitations to the solicitor’s liability and any matters that aren’t considered

2) Solicitor MUST inform client fully of material facts to transaction
* Client should NOT proceed to exchange until they have read the report on title and fully understand what they are buying.
* Should be set out in a way that client understands

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24
Q

What may be done if delay until completion following exchange?

A

Protect the equitable interest gained at exchange as estate contract - regiser as class c(iv) land charge OR notice in CH register

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25
Role of seller's solicitor pre-exchange
1. Order office copies 2. Deduce title 3. Prepare contract 4. Provide replies to pre-contract enquiries
26
Role of buyer's solicitor pre-exchange
1. Raise pre-contract searches 2. Prepare report on title 3. Investigate title 4. Draft certificate of title 5. Approve contract
27
Role of seller's solicitor pre-completion
1. Approve draft transfer 2. Order redemption statement 3. Respond to requisitions on title 4. Prepare completion statement
28
Role of buyer's solicitor pre-completion
1. Raise requisitions on title 2. Submit final certificate on title 3. Draft transfer 4. OS1
29
Role of seller's solicitor post-completion
Send completion papers
30
Role of buyer's solicitor post-completion
1. Register charge at CH 2. Pay SDLT 3. Submit LR app
31
Measure for common law damages
* To put C in position they would have been in if contract was properly performed * For losses naturally flowing from breach + any reasonably foreseeable consequential loss e.g. wasted legal costs
32
What is deducted from damages
* If buyer successful in a claim, the interest received under SCS (i.e. residential) is DEDUCTED from such sum
33
Seller's remedies re late completion
Rescind contract, and on doing so may: 1. Forfeit deposit & any interest 2. Resell property & any contents 3. Claim contractual damages
34
Buyer's remedies re late completion
Rescind contract, and on doing so may: 1. Demand return of deposit & any interest 2. Claim contractual damages or even SP
35
Pros of debt action to recover rent
1. Reasonably simple 2. Can separate debt from LL/T relationship 3. Any sum owed under lease incl. service charge
36
Cons of debt action to recover rent
Court action - potentially costly & time consuming
37
Pros of CRAR
Quick and efficient - no need to involve court
38
Cons of CRAR
1. Must observe correct procedure 2. Limited to principal rent only!
39
Pros of forfeiture to recover rent
1. Quick and efficent - no need to involve court 2. Threat of forfeiture may suffice 3. *MAY extend to other sums depending on how Rent is defined*
40
Cons of forfeiture to recover rent
1. Risk that T will not comply 2. May lose T
41
Cons of damages for breach of repair covenant
1. S 146 notice required and if qualifying lease, T may be able to serve counter-notice! 2. Damages limited to reduction in value of LL's reversion 3. If T does serve counter-notice, court will only give leave to continue in exceptional cases e.g. repair needed urgently
42
Cons for forfeiture for breach of repair covenant
Same as for damages e.g. s 146 / counternotice
43
Pros of Jervis v Harris clause for breach of repair covenant
1. Quick and efficient - no need to involve court 2. LL recovers full costs of repairs
44
Cons of Jervis v Harris clause for breach of repair covenant
1. LL must take care not to exceed powers (e.g. repairing beyond obligation) 2. Must be provided in lease
45
Pros of specific performance for breach of repair covenant
May be only option
46
Cons of specific performance for breach of repair covenant
1. Rarely granted unless exceptional circumstances (e.g. no self-help or forfeiture clause in lease) 2. Last resort - discretionary
47
Pros of damages for other breaches
May be helpful in separating issue whilst preserving LL / T relationship
48
Cons of damages for other breaches
1. May be protracted and costly, no guarantee of recovering costs 2. Only re breach that can be compensated monetarily
49
Pros of forfeiture re other breaches
May be effective in persuading T to comply with obligations
50
Cons of forfeiture re other breaches
1. S 146 notice required 2. Risk of losing T 3. Probably not appropriate for minor breaches
51
Pros for SP re other breaches
Not limited to financial, i.e. oblige T to comply with obligation
52
Cons of SP for other breaches
1. Discretionary - difficult to persuade court to grant 2. Cannot be used for continuing obligations (e.g. obligation to keep shop premises open each day)
53
Pros for injunction re other breaches
Not limited to financial, i.e. may stop T from proposed breach
54
Cons for injunction re other breaches
Discretionary remedy - may be difficult to persuade court to grant
55
When might an injunction be used
Might be used for an intended breach of user clause, or an intended assignment or underletting
56
Pros of using guarantor to recover rent
Guarantor may have better means to comply with obligation
57
Cons of using guarantor to recover rent
1. May end up in certain instances with guarantor taking overriding lease and becoming tenant 2. Must be a guarantor
58
Pros of using former T to recover rent
May be in better position to comply with obligations
59
Cons of using former T to recover rent
* Same as for guarantor (i.e. overriding lease) * Must also be a former T with old lease OR new lease with AGA (to have privity)
60
Pros of rent deposit deed to recover rent
1. Quick and efficient 2. Can help T ride over cash flow problems
61
Cons of rent deposit deed to recover rent
1. Limited to certain number of months' rent 2. Relies on T topping up once used 3. Rent only
62
When is the interest of a sub-tenant terminated and when is it not?
* Terminated if **forfeited** (can apply for relief *even where T may not be able to obtain*) * Cf. surrender - not terminated *even if rights unknown to LL* (becomes immediate T of head LL on terms of sublease)
63
s.o.t - what does 'for the purposes of business' include
1) Incl. any trade, profession or employment 2) ALSO, non-commercial activities provided they are carried on by a body of persons - e.g. unincorporated associations like sports clubs or charity shop / tennis club for members only / residential use that furthers tenant’s business 3) NOT: * Sunday school sessions provided free of charge by an individual * Tenant of a house taking a small number of lodgers without profit 4) NOTE: if use is mixed, property still used for business purposes if business use is not merely incidental to residential use 5) If the lease specifically excludes use for business purposes, T cannot claim protection under the Act
64
S 26 procedure - if LL opposes new tenancy
1) Tenant **serves** valid s 26 request 2) *Within 2 months* – serve **counter-notice** on tenant with ground(s) of opposition * If NOT served = LL loses right to oppose 3) Once time to serve counter-notice has *expired*, T must **apply to the court** for a new tenancy but BEFORE the proposed commencement date * Deadline = day before proposed commencement date (but may be extended by parties in writing) * If T does NOT apply = T loses right to new tenancy 4) LL can **apply to the court** to terminate the lease on the specified ground(s) of opposition * But NOT if T has already made an application for new tenancy as above * If granted = existing lease ends and T has no right to occupy
65
S 26 procedure - if LL does not oppose new tenancy
1. Tenant **serves** valid s 26 request 2. Parties **seek to agree terms** of renewal lease a. Counter-notice need not be served 3. Tenant must **apply to the court** for a new tenancy by the proposed commencement date OR agree an **extension** with the landlord (to protect its position) 4. LL can also **apply to the court** for a new tenancy * Even if LL opposed renewal * If T not happy with terms determined by court / changed its mind - 14 days to ask court to revoke order i. If asked - court MUST AGREE + T has no right to renew
66
When do both types of order under s 26 bring existing tenancy to an end
3 months and 21 days after date of order
67
68
Requirement for s.27 notice to be available
T must have been in occupation for at least 1 month
69
S 25 procedure - hostile
1) LL **serves** valid hostile notice * Must include *relevant ground(s)* for opposing – cannot be changed once served 2) Tenant must **apply to the court** for a new tenancy by the proposed termination date * Otherwise right to new tenancy = lost 3) LL can **apply to the court** for termination if tenant has not already made application
70
S 25 procedure - friendly
1) LL **serves** valid non-hostile notice * Stating their *proposals* for new tenancy e.g. key terms like rent 2) Parties **seek to agree terms** of renewal lease before termination date 3) Tenant must **apply to the court** for a new tenancy by the termination date OR agree with LL to **extend** deadline in writing * Otherwise, T loses right to security of tenure (negligent) 4) LL can also **apply to the court** for a new tenancy
71
What rent does T pay during holding over
Continues to pay rent as last reviewed until either party applies for interim rent
72
When can app be made for interim rent and when would this be payable from
* No later than 6 months after proposed termination date * Will be payable from the earliest date that could have been specified at common law for termination or commencement of a new tenancy
73
How could LL protect its position re interim rent
Include provision for rent review at the end of the term of the lease (penultimate / last day rent review)
74
Benefit for T to apply for interim rent
Will usually apply where market rent would be less than in current climate - NOT upwards only
75
How is underletting / grant of lease different to assignment in terms of who prepares what
* Underletting / grant - T (if underlease) or LL prepares both contract if applicable AND lease * Assignment - Assignor prepares contract (like with FH) and assignee prepares transfer deed (like with FH)
76
Options for buyer if issue with property pre-exchange (i.e. at a time when they can walk away)
1. Negotiate price 2. Agree that seller takes steps to remedy problem before completion (make it a condition)
77
3 types of survey
1. Basic valuation 2. Homebuyer report 3. Full structural survey
78
When is basic valuation used
1. At a minimum where lender involved 2. Gives a valuation and identifies major obvious defects 3. Cheapest option
79
When is homebuyer report used
Suitable for most properties in reasonable condition aged less than 150 years
80
When is a full structural survey used
* Especially where property is listed, has had extensive renovations or where extensive alterations are planned * Most expensive option
81
Only when are damages available for pre-contract misrepresentation
Where there's been a material diff between represented & actual description or value of the property
82
Only when is rescission available for pre-contract misrepresentation
1. **Fraud** or **recklessness**, or 2. Where buyer would be obliged, to his detriment, to accept a property **differing substantially** from that which the error or omission had let it to expect
83
Full title guarantee
* Property free from incumbrances other than those disclosed and those which the seller did not know about and could not reasonably have known about. * should be default unless good reason
84
Formula B undertakings on exchange
* Hold signed contract to the other sol's order * Post signed contract to other that day by 1st class post or DX * For buyer's sol - to send deposit in form of payment specified in contract
85
Law Society Code for completion by post undertakings
* Seller's sol holds transfer deed & docs to buyer's sol's order * ASAP and no later than end of working day after copmletion, seller to send transfer deed & docs to buyer's sol
86
Options if problematic restrictive covenants on title
1. Withdraw from purchase pre-exchange 2. Identify pwb and approach to vary (difficult if old covenant) 3. Apply to UT Lands Chamber (expensive) 4. Indemnity policy from sellers in the event of breach
87
What if seller refuses to provide indemnity insurance policy
* Buyer provides * If also acting for lender, will need to report to lender for approval - will also likely require
88
Planning control enforcement - pre-25 Apr 2024
4 years: * building works (from substantial completion) * change of use to single dwelling 10 years: * other changes of use * breach of planning condtion
89
Planning control enforcement - post-25 Apr 2024
10 years for everything
90
Building regs - prosecution time limit in England & Wales
* England - **no time limit** * Wales - **6 months** to prosecute (unlimited fines), done within **2 years** of completion of works
91
Building regs - enforcement notice deadlines in England & Wales
* England - 10 years from completion of works to serve * Wales - 1 year from completion of works to serve
92
Time limit for injunctions re enforcement
No time limit! *Discretionary*
93
What does enforcement notice provide
If recipient does not alter / remove works and restore to earlier condition **within 28 days**, local authority can undertake the work at **landowner's expense**
94
Underletting - deduction of title
* Lease over 7 years - T need only provide copy of registered LH title * Lease 7 years or less - T must provide LL FH title plus lease
95
Assignment - deduction of title
* Registered lease - can rely on LH title * Unregistered lease - must also investigate LL title

SQE 2 (24 decks)

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