W10

Question 1

What is the effluxion of time in relation to the termination of a lease?

Answer 1

The effluxion of time refers to the end of a lease when the contractual term expires.

Question 2

What are the common grounds for a landlord to forfeit a commercial lease?

Answer 2

The common grounds for a landlord to forfeit a commercial lease include non-payment of rent, breach of tenant’s obligations under the lease, or an insolvency event.

Question 3

How can a fixed-term tenancy without security of tenure come to an end?

Answer 3

A fixed-term tenancy without security of tenure will expire at the end of the contractual term, and the landlord can require the tenant to vacate the premises.

Question 4

How can a landlord exercise the right of forfeiture for non-payment of rent?

Answer 4

A landlord can exercise the right of forfeiture for non-payment of rent as soon as the lease allows. They may arrange for a bailiff to attend the premises, change the locks, and put a notice on the door, preventing anyone from entering.

Question 5

What happens if a tenant refuses to vacate the premises after the end of a lease?

Answer 5

If a tenant refuses to vacate the premises after the end of a lease, the landlord can treat the tenant as a trespasser.

Question 6

What is a section 146 notice and when is it required for forfeiture?

Answer 6

A section 146 notice is a notice served by the landlord to the tenant detailing the alleged breach of the tenant’s obligations under the lease. It is required for forfeiture in cases of any breach other than non-payment of rent.

Question 7

Under what circumstances would a tenant be treated as a ‘tenant at will’?

Answer 7

If the landlord consents to an unprotected tenant remaining in occupation, the tenant is not holding over but would be treated as a ‘tenant at will’.

Question 8

Why can forfeiture be an effective remedy for a landlord?

Answer 8

Forfeiture can cause embarrassment to a tenant’s business and disrupt its operations. The process of changing locks and preventing access to the premises can prompt the tenant to settle the debt and regain access to avoid damage to their business’s reputation.

Question 9

How can a tenancy at will be converted to a periodic tenancy?

Answer 9

If the landlord accepts rent, then the tenancy at will may be converted to a periodic tenancy.

Question 10

What are the potential risks associated with peaceable re-entry as a method of forfeiture?

Answer 10

There is a risk that the tenant may legally challenge the peaceable re-entry if it has not been carried out lawfully or if the tenant’s stock, equipment, or belongings are lost, damaged, or stolen during the process.

Question 11

How does relief from forfeiture work?

Answer 11

Relief from forfeiture is a discretionary remedy available to tenants who have received a section 146 notice or faced the process of forfeiture. If granted by the court, it restores the lease as if forfeiture had never taken place, aiming to put the parties back into the position they would have been in had forfeiture not occurred.

Question 12

What is a break clause in a lease and how does it affect the duration of the lease?

Answer 12

A break clause is a provision in a lease that allows the lease to be ended before the end of the contractual term. It provides an opportunity for either party to terminate the lease early.

Question 13

What are the advantages and disadvantages of damages as a remedy for breach of repairing obligations?

Answer 13

The advantages of damages include separating the issue while preserving the landlord/tenant relationship. However, the disadvantages include potentially protracted and costly court action, with damages limited to the reduction in value of the landlord’s reversion.

Question 14

What happens if a tenant exercises a break clause in a lease?

Answer 14

If a tenant exercises a break clause, it effectively ends the lease with a protected tenancy. The tenant can terminate the lease early.

Question 15

How does a self-help clause (Jervis v Harris clause) benefit a landlord in remedying breaches?

Answer 15

A self-help clause allows the landlord to enter the property, carry out necessary repairs, and recover the cost from the tenant as a debt. It provides a quick and efficient remedy without involving the court.

Question 16

How does a landlord’s exercise of a break clause differ from a tenant’s exercise of a break clause?

Answer 16

If a landlord exercises a break clause (either a landlord-only or mutual break clause), it only brings the contractual term to an end. However, if a tenant exercises a break clause, it effectively terminates the lease.

Question 17

What is the purpose of specific performance as a remedy for breaches?

Answer 17

Specific performance is a discretionary remedy that may be granted in exceptional circumstances, such as when the lease contains no remedy for repairing breaches. It aims to oblige the tenant to comply with their obligation rather than providing financial compensation.

Question 18

What is a notice to quit and when is it used?

Answer 18

A notice to quit is used to end a periodic tenancy, and the notice period depends on the period of the lease. It can be given by either the landlord or the tenant to indicate their intention to end the tenancy.

Question 19

What determines the notice period required for a notice to quit?

Answer 19

 Weekly – four weeks (residential) or one week (other tenancies)
 Monthly – one month
 Quarterly – one quarter
 Yearly – six months

If there is security of tenure must follow the notice requirements of s25 (ie, 6 to 12 months’ notice of the termination date)

Question 20

How does a notice to quit affect a protected tenancy?

Answer 20

For a protected tenancy, a landlord’s notice to quit will end the periodic tenancy itself, but the tenant can still hold over and remain in occupation.

Question 21

What happens if a landlord reasonably withholds consent to assign but the tenant proceeds with the assignment anyway?

Answer 21

If a landlord reasonably withholds consent to assign but the tenant intends to proceed with the unlawful assignment, the landlord may apply for an injunction to prevent the tenant from proceeding with the assignment.

Question 22

Can a periodic tenancy be contracted out?

Answer 22

A periodic tenancy cannot be contracted out, but not every periodic tenancy will qualify as a protected tenancy. Some tenancies may fall outside the scope of protection, such as non-commercial tenancies or service tenancies.

Question 23

What are the requirements for a section 146 notice in cases of breach of repairing obligations?

Answer 23

For breaches of repairing obligations, a section 146 notice must specify the breach, require its remedy, and demand compensation. If the lease qualifies under the Leasehold Property (Repairs) Act 1938, the tenant has 28 days to serve a counter-notice before the landlord can proceed.

Question 24

How is the termination date determined in a notice to quit?

Answer 24

The termination date specified in a notice to quit must expire on the first day or the last day of the tenancy period. For example, if the tenancy runs from the 15th day of each month to the 14th day of the next month, the notice period may end on either the 14th or 15th.

Question 25

What happens if a periodic tenancy is a protected tenancy and a landlord serves a notice to quit?

Answer 25

If a periodic tenancy is a protected tenancy, a landlord’s notice to quit will only end the periodic tenancy itself. The tenant can still hold over and remain in occupation.

Question 26

What must a landlord do to recover possession from a protected tenant under a periodic tenancy?

Answer 26

A landlord wishing to recover possession from a protected tenant under a periodic tenancy will need to serve a hostile section 25 notice supported by one or more of the statutory grounds. This notice must follow the notice requirements of Section 25 and may also double as a notice to quit.

Question 27

Can a separate notice to quit be served in addition to a section 25 notice?

Answer 27

Yes, a separate notice to quit may be served in addition to a Section 25 notice if the landlord wishes to terminate the tenancy on specific grounds.

Question 28

What happens if a tenant holds over after the expiration of a protected periodic tenancy?

Answer 28

If the tenant of a protected periodic tenancy holds over after its expiration, they cannot serve a Section 26 notice.

Question 29

How can a fixed-term tenancy be brought to an end earlier than the contractual term?

Answer 29

A fixed-term tenancy can be brought to an end earlier than the contractual term if both the landlord and tenant agree to surrender the lease. An express surrender must be made by deed.

Question 30

What is the difference between an express surrender and a surrender by operation of law?

Answer 30

An express surrender is when the tenant gives up their leasehold interest to the landlord by deed. A surrender by operation of law occurs when both the landlord and tenant behave in a way that indicates the tenancy no longer exists.

Question 31

What is a premium in relation to a surrender of a lease?

Answer 31

A premium may be payable for the surrender of a lease, but whether it is required will depend on the circumstances and who stands to benefit the most. A premium paid by the tenant to give up their interest is known as a reverse premium.

Question 32

What happens in a merger of a lease?

Answer 32

A merger occurs when either the tenant acquires the landlord’s superior interest or a third party acquires both the tenant’s and landlord’s interests. This can happen regardless of whether the tenancy is protected or not.

Question 33

How can a fixed-term tenancy without security of tenure come to an end?

Answer 33

A fixed-term tenancy without security of tenure will expire at the end of the contractual term, and the landlord can require the tenant to vacate the premises.

Question 34

How can a tenancy at will be converted to a periodic tenancy?

Answer 34

If the landlord accepts rent, then the tenancy at will may be converted to a periodic tenancy.

Question 35

Under what circumstances would a tenant be treated as a ‘tenant at will’?

Answer 35

If the landlord consents to an unprotected tenant remaining in occupation, the tenant is not holding over but would be treated as a ‘tenant at will’.

Question 36

What is the difference between a ‘once and for all breach’ and a ‘continuing breach’ in relation to forfeiture of a lease?

Answer 36

A ‘once and for all breach’ refers to a breach that, once the landlord waives the right of forfeiture, cannot be used as grounds for future forfeiture. On the other hand, a ‘continuing breach’ allows the landlord to regain the right of forfeiture each day that the breach continues.

Question 37

What happens if a landlord acts in a way that acknowledges the continuing existence of the lease despite a breach by the tenant?

Answer 37

If a landlord acts in a way that acknowledges the continuing existence of the lease, they risk losing the right of forfeiture. An implied waiver of the right of forfeiture can arise if the landlord does an unequivocal act recognizing the lease’s existence, with knowledge of the breach, and communicates that act to the tenant.

Question 38

What is the purpose of a rent deposit deed in relation to security arrangements?

Answer 38

A rent deposit deed provides security for the landlord by holding a sum of money as a rent deposit. This can help cover any rent arrears or other breaches by the tenant. The landlord can dip into the rent deposit if needed and require the tenant to top it up once used.

Question 39

Is forfieture an automatic right?

Answer 39

No, must be expressed in the lease

Question 40

Action in debt?

Answer 40

· A landlord can issue court proceedings to recover a debt, such as unpaid rent, service charge or insurance rent.
· An action for debt is limited to rent due in the six years before the issue of proceedings. Any earlier outstanding rent is irrecoverable.

Question 41

Commercial rent arrears recovery (CRAR)?

Answer 41

· CRAR may be used where:
o the premises are purely commercial (it cannot be used, for example, where the premises comprise a shop and residential flat)
o a minimum of seven days’ principal rent is owed (it can’t be used to recover service charge or any other sum reserved as ‘rent’ but does include VAT and interest)
o the lease has not been forfeited

· CRAR requirements:
o the landlord must appoint an enforcement agent who either has the required certificate from the court or is exempt from the requirement (eg, a police officer)
o Seven clear days’ notice must be given of the intention to enter the tenant’s premises (clear days exclude Sundays and bank holidays)
o The notice must include certain details, such as the amount of the debt and how to repay it, details of the power being used to enforce the debt, and contact details for the enforcement agent
o If the notice expires without repayment of the debt, the enforcement agent can enter the premises and take control of goods belonging to the tenant up to the value of the debt owed.
o The landlord must serve a further seven clear days’ notice if it intends to sell any of the seized goods.

Question 42

Forfeiture for breach of repair covenant?

Answer 42

 Repair – s.146 notice and 1938 Act wording
* Breach of repair on leases of:
* the lease is for a term of seven years or more; and
* there are at least three years of the term left to run;
o If so, the tenant has 28 days to serve a counter-notice. This means that the landlord must get leave from the court before proceeding (and this is not easy).
o CAN ONLY BE SERVED IF THERE IS A BREACH OF REPAIR

Question 43

Forfieture for non-payment of rent?

Answer 43

 Non-payment of rent – must fall within the forfeiture clause in the lease – do not need a s146 notice

Question 44

Forfeitrure for other breaches?

Answer 44

 For any other breaches, the landlord must serve a section 146 notice detailing the breach and giving the tenant a reasonable time to remedy the breach before proceeding to peaceable re-entry or proceedings for forfeiture.

Question 45

Implied waiver of the right to forfeiture?

Answer 45

· An implied waiver of the right of forfeiture can arise if:
o the landlord does some unequivocal act recognising the continuing existence of the lease;
o with knowledge of the breach in question; and
o communicates that act to the tenant.
· The intention of the landlord is irrelevant.

Question 46

When is a jervis v harris clause applicable?

Answer 46

 Must be in the lease for it to be applicable