PQs Flashcards
(8 cards)
Business Tenancies PQs:
Typically, what parties are involved in these PQs and what is the situation?
Landlord wants to recover possession – think as to what grounds they can rely on
Each tenant wants to know if their lease is protected under LTA 1954 – BEAR IN MIND residential tenancies can come up (if occupation is not for the purpose of a business)
Or both (to an extent)
Business Tenancies PQs:
Mental Checklist
(What SHOULD you mention?)
points to consider and case law examples
HINT: think of case law examples relating to the 8 questions to determine security of tenure. And consider the requirements to rely on the grounds:
(c) breaches
(f) works to be carried out
(g) possession by landlord
Premises – bare land, car parking and easements constitute as premises
Case law:
Bracey v Read – bare land
Harley Queen v Forsyte Kerman – parking space
Pointon York Group v Poulton – easements
Occupation in seasonal periods is STILL OCCUPATION
I&H Caplan v Caplan – if the tenant intends to return & hasn’t ceased working there, they are still in occupation
Occupation by sub-tenants
(either with semi-permanent guests, through a management agreement or both)
Graysims Holdings v P&O Properties – sub-tenants and tenants CANNOT be in occupation AT THE SAME TIME.
Has exclusive possession been granted?
How is the person using the space? Are they being provided with services? Is the tenant only entering in emergencies?
Management agreements (Dellneed v Harold Chin) – is the person keeping the profits (no – could indicate being paid a salary). Are they in control of the space – could indicate granting of exclusive possession?
Relying on the grounds
Has there been any breaches? Possibly rely on ground (c) CONSIDER IF THERE HAS BEEN A WAIVER OF THE BREACH!
Arrears – is it due? Is it persistent (HISTORY OF DELAYS) – it’s discretionary, courts might consider will this persist if granted a new tenancy?
Ground (f) – intention is it genuine? Are works substantial?
Ground (g) – is possession genuine?
Has the landlord acquired the interest for > 5 years?
Has the landlord purchased the interest?
(NO – to both Qs NO RELIANCE OF GROUND G)
Leasehold covenants and remedies TYPE 1 PQ: Typically, what parties are involved in these PQs and what is the situation?
HINT: think of the clues (right of re-entry, repair, sub-letting, assignment)
3 ‘tenants’ and contain the following clues:
Right of re-entry = FORFEITURE will be relevant to the question
Repair – breaches of repairing obligations link to forfeiture = s.146 notices
Sub-letting / Assignment – either with consent or be prohibited – which the tenant does with consent & in breach of their covenant – so the 3rd person is either a sub-tenant / assignee tenant
Leasehold covenants and remedies TYPE 1 PQ: What is the aim of these questions?
TO DETERMINE LIABILITY
Leasehold covenants and remedies TYPE 1 PQ: What must you FIRST DETERMINE?
determine whether it’s old lease or new lease
New lease – ON OR AFTER 1ST JAN 1996 (governed by LTCA 1995)
What is the old-lease flowchart?
HINT: there are 4 steps
PRE-1996 Flowchart:
- Legal or equitable lease
(Legal – registration & a deed – the words in exam questions indicate whether a lease is legal:
granted = legal lease (use of deed)
created = equitable
transfer in writing = equitable (can argue legal if executed with a deed) - Privity of contract: OLD landlord & tenant
Original tenant liability exists – IMPORTANT FOR NON-PAYMENT OF RENT IN PARTICULAR
Limitation period: landlord is restricted to 6 years of liability
LTCA 1995 applies retrospectively – landlords must serve a problem notice, alerting tenant of the liability becoming due. - Privity of estate: CURRENT landlord & tenant
Status: as landlord and tenant – BEWARE OF SUB-LETTING HERE
If there is a sub-tenant – NO PRIVITY OF ESTATE EXISTS – how can the landlord enforce covenants = FORFEITURE - Touch and concerns principle: Swift Investments v Combined English Stores – only proprietary covenants pass on assignment
Proprietary covenants – affect the land and its uses
If any owner in land benefits = proprietary
Affects nature, quality, mode of land = proprietary
Expressed to be personal = personal
Leasehold covenants and remedies TYPE 2 PQ: What is the aim of these questions?
To determine who the landlord can PURSUE for any breaches of covenants
Leasehold covenants and remedies TYPE 2 PQ: What are some KEY points to bare in mind?
o Sub-tenant – LTCA 1995 means NO PRIVITY OF ESTATE – no need to have landlord and tenant status to enforce covenants
Pursue sub-tenant to comply to remedy the breach – use the threat of forfeiture as a tool
[explain the steps to forfeiture in either non-payment of rent or other breaches]
o Current Tenant (& next previous assignee) – likely to be the same company
K/S Victoria v House of Fraser – a guarantor of the current / new tenant CANNOT be the SAME as the assigning tenant
o Original tenant (liable if entered into a GAGA)
EMI Group v Prudential Assurance
