Leases

Question 1

What is a lease?

Answer 1

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

Question 2

Essential characteristics of a lease?

Answer 2

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

Question 3

What is a license?

Answer 3

• Merely a personal right to occupy a piece of land

- Not a right in rem and terminated very easily

Question 4

1.) Exclusive possession

Answer 4

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

Question 5

2.) Determinate period

Answer 5

• Must be a certain beginning and a certain end

- Land may be held on a periodic tenancy

Question 6

Lace v Chantler

Answer 6

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

Question 7

3.) Payment of a rent

Answer 7

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

Question 8

4.) Term less than that of the grantor

Answer 8

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

Question 9

Types of leases and tenancies:

Answer 9

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

Question 10

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

Answer 10

-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

Question 11

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

Answer 11

-Grant by deed

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

Question 12

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

Answer 12

-Orally or in written

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

Question 13

When does an equitable lease arise?

Answer 13

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

Question 14

Assignment of leases and tenancies

Answer 14

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

Question 15

Walsh v Lonsdale

Answer 15

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

Question 16

Street v Mountford

Answer 16

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

Question 17

A.G Securities v Vaughan

Answer 17

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

Question 18

Antoniades v Villers

Answer 18

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

Question 19

What is a covenant?

Answer 19

• 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

Question 20

Express covenants of the tenant:

Answer 20

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

Question 21

Implied covenants of the tenant:

Answer 21

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

Question 22

Express covenants:

Answer 22

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

Question 23

Implied covenants of the landlord

Answer 23

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

Question 24

Liverpool v Irwin

Answer 24

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

Question 25

s8 Landlord and Tenant Act

Answer 25

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

Question 26

Remedies for breach of repair covenant by landlord

Answer 26

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

Question 27

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

Answer 27

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

Question 28

Liability of Original Tenant before 1/1/96

Answer 28

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

Question 29

Liability of Original Landlord before 1/1/96

Answer 29

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

Question 30

Swift Investments v Combined English Stores

Answer 30

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?

Question 31

Position of assignee before 1/1/96 - Legal

Answer 31

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

Question 32

Position of assignee before 1/1/96 -Equitable

Answer 32

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

Question 33

Position of new landlord before 1/1/96

Answer 33

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

Question 34

Position of subtenant before 1/1/96

Answer 34

- No privity of estate | - No privity of contract

Question 35

What governs most of the positions now?

Answer 35

Landlord and Tenant (covenants) Act 1995

Question 36

Liability of original tenant after1/1/96

Answer 36

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

Question 37

Liability of original landlord after1/1/96

Answer 37

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

Question 38

Position of assignee after1/1/96

Answer 38

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

Question 39

Position of New Landlord after1/1/96

Answer 39

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

Question 40

Position of sub-tenant after1/1/96

Answer 40

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

Question 41

If tenant has breached by non-payment of rent?

Answer 41

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?

Question 42

s210 Common Law Procedure Act

Answer 42

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

Question 43

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

Answer 43

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

Question 44

If tenant has breached other covenant?

Answer 44

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

Question 45

Did the tenant remedy the breach?

Answer 45

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

Question 46

Hammersmith LBC v Monk

Answer 46

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

Question 47

Hoffman v Fineberg

Answer 47

"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

Question 48

Perera v Vandiya

Answer 48

Authority for allowing quiet enjoyment

Question 49

Moule v Garrett

Answer 49

Authority for claiming against the most recent assignee

Question 50

Spencers case

Answer 50

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

Question 51

Argyll stores

Answer 51

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

Question 52

Hill v Barclay

Answer 52

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

Question 53

Fuller v Happy Shopper Markets

Answer 53

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

Question 54

Matthews v Smallwood

Answer 54

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

Question 55

Thomas v Ken Thomas

Answer 55

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

Question 56

Duncliffe v Caefelin

Answer 56

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

Question 57

Smallwood v Shepards

Answer 57

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

Question 58

Seagull v Thosby

Answer 58

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

Question 59

Remedy of distress:

Answer 59

Abolished by The Tribunals, Courts and Enforcement Act 2007

Question 60

Expert Clothing Service v Hillgate House

Answer 60

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

Question 61

Billson

Answer 61

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

Question 62

Aslan v Murphy

Answer 62

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