Please enable JavaScript.

Coggle requires JavaScript to display documents.

Leases - Coggle Diagram

- - - - Sharing clause
        
        AG Securities v Vaughan
        
        NO exclusive possession
        
        Antoniades v Villiers
        
        Exclusive possession
        
        Genuine clause OR sham?
        
        Wording of the clause
        
        Clause ever been exercised
        
        Relationship between occupiers
        
        Size and nature of accomodation
        
        Reserves right to share property or introduce others to share NO exclusive possession
      - Landlord provides services
        
        LICENCE if services carried out, tenant NEVER enjoy exclusive possession
        
        E.g., cleaning, changing linen etc.
      - Landlord retains a key, and has right of access
        
        Emergency or by arrangement- EXCLUSIVE POSSESSION
        
        Right of access is restricted or unrestricted
        
        Purpose for which key is retained
      - Right to exclude ALL others, including landlord
      - Multiple occupiers
        
        OCCUPIERS TOGETHER right to exclude all others (including landlord) then prima facie LEASE
        
        Whether they have one single lease (JOINT TENANCY) or several individual leases?
        
        JOINT TENANCY: all co-owners/ tenant constitute one single entity and own/ lease whole property as ONE COLLECTIVE ENTITTY
        
        Four unities (AG Securities v Vaughan)
        
        Unity of INTEREST
        
        All have a leasehold interest for SAME TERM under SAME CONDITIONS and JOINTLY LIABLE FOR RENT
        
        Unity of TIME
        
        All INTERERS must start at SAMETIME
        
        Unity of POSSESSION
        
        All entitled to occupy the whole of the premises (if exclusive possession of part = individual leases of their own part)
        
        Unity of TITLE
        
        All interests derive from SAME DOCUMENT or separate identical documents that are INTERDEPENDENT
    - - NO CERTAINTY OF TERM = NO LEASE
      - Certain duration: when the arrangement will end
      - FIXED term
        
        Maxium duration known from outset
        
        Neither party can unilaterally end earlier unless BREAK CLAUSE present
      - PERIODIC term
        
        Lease for one period
        
        Notice to quit: lease extends automatically until either party give notice to terminate
        
        EXPRESS
        
        Written agreement documenting the agreement
        
        IMPLIED
        
        NOTHING set out in writing e.g., payment rent on periodic basis
        
        TERM: reference to which the rent is CALCULATED
- - - - Granted at "BEST RENT"
        
        Market rent
      - NOT SUBJECT TO A FINE OR PREMIUM
        
        No upfront payment
      - Takes effect IN POSSESSION
        
        Takes lease immediately
    - - Express periodic tenancies
      - Implied periodic tenancies
      - Short fixed term leases (3 years or less)
  - - - Validly executed: seller signs in the presence of witness who also signs
      - Dating the document
      - Labelled as a deed
- - - - TENANT obtains AUTOMATIC RELEASE from tenant's covenants, remains liable for breaches while tenant (s. 5 LTA 1995)
      - LANDLORD must APPLY FOR RELEASE FROM TENANT (s.6 LT(C)A 1995) by PROCEDURE in s. 8(1) LT(C)A 1995
        
        Release generally granted by tenant
        
        Apply to COURT for release under s. 8(2)(b) LT(C)A 1995
        
        NO release from covenants EXPRESSED TO BE PERSONAL or in BREACH of covenant
      - Abolishes privity of CONTRACT: original landlord and tenant NO LONGER LIABLE for full duration
      - Landlord and Tenant (Covenants) Act 1995
    - - The liability of ORIGINAL landlord and tenant continues for FULL DURATION of lease term s. 79(1) LPA 1925
      - Continuing liability
      - Privity of ESTATE: exists between CURRENT landlord and tenant
        
        Lasts only for period lease is vested in tenant
        
        Only liable for breaches during time of tenancy OR covenant directly
      - NO privity of CONTRACT unless assignee covenants directly with landlord
    - - Former tenant SUE for breach of indemnity covenant and recoup damages
      - Assignee agrees to pay rent and perform all covenants
    - - Quasi-contractual course of action
      - Former tenant sue assignee for breaches (ONLY ASSIGNEES)
- - - - Degree of formality
      - Market rent is paid
- - - - Only applies to IMPROVEMENTS
        
        Improvements: works which improve the premises from TENANT's perspective
      - Converts QUALIFIED covenant against alterations that amount to improvements into a FULLY QUALIFIED one
      - Allows landlord to require as a condition of giving consent:
        
        Reinstatement of premises if reasonable at end
        
        Payment of landlord's expenses in giving consent
        
        Payment of compensation for loss in value to reversion
        
        Conditions set out in "Licence for Alterations"
    - - One-off consent documented in Licence for Alterations
      - Landlord can stipulate ANY conditions NOT subject to reasonableness
    - - Requiring reinstatement/ removal of alterations at end
      - Requiring landlord's approval or consent (licence)
        
        Documented by way of "Licence for Alterations" (deed)
      - Limiting the TYPE of alterations permitted
  - - - Does NOT imply a reasonableness proviso
      - Prevents landlord demanding PAYMENT from granting consent
      - Applies to QUALIFIED covenants
  - - - Age of the premises
      - Express words of the covenant
      - Character and type of premises at beginning of the lease
  - - - Landlord's consent formally recorded in "Licence to Assign"
      - Formalities
        
        Deed (s. 52 LPA 1925 complies with s. 1) or form TR1
        
        If registered lease update Land Registry
      - Covenant construed in TENANT's favour
        
        Does not prohibit subletting whole or part
        
        Covenant against sub-letting whole does not prohibit subletting part
      - Party whom lease is sold ("assignee") becomes immediate tenant (change in Proprietorship Register leasehold title)
      - Sale by tenant of remainder of lease to another party
      - Pre-conditions (s. 19(1A) LTA 1927 (inserted by s. 22 Landlord and Tenant (Covenants) Act 1995)
        
        Agree CIRCUMSTANCES landlord can WITHOLD consent
        
        Applies to new leases granted on or after 1 Jan 1996
        
        Agree CONDITIONS in which consent may be GRANTED
        
        Authorised Guarantee Agreement (AGA): guarantee by outgoing tenant to immediate assignees obligations ONLY
        
        AUTOMATICALLY REASONABLE if imposed
    - - Tenant remains responsible for covenants and can earn income and can underlet at lower rent
      - Formalities
        
        Deed (s. 52 LPA 1925 complies with s. 1)
        
        Registered if over 7 years (s. 27(2)(b) LRA 2002)
      - New lease called "underlease" or "sublease"
      - Tenant grants a lease out of its own lease
      - Landlord's consent recorded in a deed called "Licence to Underlet"
    - - Assignment, underletting and parting with possession (also charging/ mortgaging/ surrendering lease)
    - - Qualified
        
        s. 19(1)(a) LTA 1927 converts QUALIFIED into FULLY QUALIFIED covenant
      - Fully qualified
        
        Contain a proviso expressly or implied by s. 19(1)(a) LTA 1927 that consent not be unreasonably withheld
        
        Tenant applies to landlord in writing s. 1 LTA 1988
        
        Landlord give written consent within REASONABLE TIME (28 days)
        
        Burden on LANDLORD to prove REASONABLE REFUSAL (s. 1(6) and WRITTEN REASONS provided
        
        Landlord liable for TORTIOUS DAMAGES for breach of statutory duty
      - Absolute covenants
        
        NO statutory provisions apply
        
        Landlord could give one off consent
  - - - "The tenant shall not do without the landlord's consent"
      - Landlord does NOT have to give consent
    - - "The tenant shall not do without the landlord's consent such consent not to be unreasonably withheld or delayed"
      - Landlord has to be reasonable if consent withheld
    - - "The tenant shall not do"
      - Completely prohibited from doing something
- - - - Legal leases
        
        Express forfeiture clause
        
        NEVER IMPLIED into legal lease
      - Equitable leases
        
        Right to forfeit for NON-PAYMENT OF RENT is implied into equitable lease
    - - Peaceable re-entry
      - Obtaining a court order
      - Pure business premises: OPTION
      - Residential need COURT ORDER: Protection from Eviction Act 1977, s. 2
    - - Step 3: Has there been a waiver?
        
        UNEQUIVOCAL ACT recognising the continued existence of the lease
        
        INADVERTENTLY: agent sends rent demand
        
        AWARE of acts/ omissions giving rise to right to forfeit
        
        CONTINUING breach
        
        Failure to REPAIR
        
        Lasts until NEXT DAY breach continues
        
        Must NOT have waived right to forfeit
        
        NON-CONTINUING breach
        
        Sub-letting without consent/ non-payment of rent
        
        PERMANENT never again for SPECIFIC breach
      - RENT covenant
        
        Step 5: Exercise the right
        
        By court order OR peaceable re-entry
        
        Step 6: Relief
        
        BEFORE the COURT ORDER
        
        Tenant pays into court ALL ARREARS and COSTS BEFORE the trail proceedings are STAYED
        
        s. 138 County Courts Act 1984
        
        s. 212 Common Law Procedure Act (High Court with 6 months arrears)
        
        AT or AFTER the COURT ORDER
        
        Exceptional circumstances
        
        Property already lawfully let to new tenant
        
        Non-payment of rent was exceptional
        
        If ARRERS are paid
        
        Application within 6 months of re-entry
        
        Court's discretion to allow lease to continue and end forfeiture process
        
        AFTER PEACEABLE RE-ENTRY
        
        Just and equitable to grant relief
        
        RENT and LANDLORD's COSTS are paid
        
        Sub-tenant
        
        Head lease forfeited, sublease ALSO DESTROYED
        
        Sub-tenant can apply for relief
        
        Vest the head lease in sub-tenant on such terms as it sees fit
        
        Step 4: Formal demand
        
        Unless:
        
        Lease expressly waives requirement
        
        At lease 6 months rent in arrears and insufficient distrainable goods to satisfy debt
        
        For EXACT AMOUNT of rent due ON THE DAY becomes payable, upon the premises between sunrise and sunset
      - Step 2: Is there a forfeiture clause?
      - OTHER covenants
        
        Step 5: Exercise the right
        
        Court order
        
        Peaceable re-entry
        
        Step 6: Relief (s. 146(2) LPA 1925)
        
        Landlord's motives for wanting forfeiture
        
        Condition: breach is REMEDIED and tenant NOT BREACH AGAIN
        
        Gravity of breach
        
        AFTER PEACEABLE RE-ENTRY
        
        Circmstances
        
        Speed tenant applies- reasonable time
        
        How wilful and blatant breach
        
        AFTER the COUT ORDER
        
        NO further relief application
        
        Step 4: s. 146 Notice
        
        Specify the breach
        
        Require breach to be remedied in reasonable time
        
        NOT capable
        
        Give tenant 14 days to consider position before forfeit
        
        Covenant not to assign/ sublet
        
        Immoral use (stigma attached)
        
        Illegal use e.g. unlawful gaming/ spying
        
        Reasonable time
        
        Nature of breach OR 3 months
        
        CAPABLE
        
        Continuing breaches e.g., failure to repair/ unauthorised use
        
        Does NOT remedy proceed to forfeit
        
        Service notice upon tenant under s. 146 LPA 1925
        
        If required, pay compensation for to landlord for breach
        
        Leasehold Property (Repairs) Act 1938
        
        s. 146 notice inform tenant right to serve COUNTER NOTICE within 28 days
        
        Tenant serves counter-notice landlord CANNOT proceed with forfeiture or damages without COURT ORDER
        
        Lease granted for at least 7 years and at least 3 years still to run
        
        Internal decorative repair s. 147 LPA 1925
        
        Tenant can apply to court to be wholly or partially RELIEVED OF LIABILITY TO EXTENT COURT THINKS NOTICE UNREASONABLE
        
        Does NOT apply
        
        Yield up in SPECIFIED state of repair at END of lease
        
        Maintenance of structure
        
        Put into decorative repair START of lease
      - Step 1: Has there been a breach?
- - - - Business: Business protected by LTA 1954 Part II
      - Residential: rights to remain in occupation under Rent Act 1977, Housing Acts 1985 and 1988
- - - - Tenant loses protection if underlets ALL premises
      - Consider the measure of CONTROL tenant exercises per anyone else
    - - "Business" very wide interpretation
      - Includes: trade, profession or employment and any activity carried on by a body of persons (corporate/ unincorporated) or members' club (even if only trade with members)
      - Not necessary establish business/ trade activity carried out for the purposes of making a profit or profit can be distributed (not-for-profit organisation)
      - Can be a company, partnership, sole trader, or sports club
    - - Excluded tenancies under s. 43 1954
        
        Mining leases
        
        Service tenancies
        
        Fixed term tenancies not exceeding 6 months (protection arise if in occupation for 12+ months through successive tenancies OR renewable beyond 6 months)
        
        Tenancies of agricultural holdings (own statutory regime)
      - Fulfil Street v Mountford requirements
  - - - Warning Notice
        
        Landlord serve WARNING NOTICE on tenant at least 14 days BEFORE tenant completes the lease or agreement for lease
        
        Prescriebd form
      - Tenant's Declaration
        
        SIMPLE declaration
        
        Prescribed form
        
        Tenant received and accepted consequences of landlord's warning notice
        
        14 days between warning notice and tenant becoming bound
        
        STATUTORY declaration
        
        Time is short, 14 day period is waived
        
        Prescribed form
        
        In front of independent solicitor, tenant acknowledges warning notice received and accepts consequences
      - Lease wording
        
        Reference to warning notice AND tenant declaration
        
        Parties agreed to exclude security of tenure
    - - Short term lettings: landlord certain regain premises
      - Commercial leases: normal negotiation process (protected might command higher rent)