1
Q
What is a structural defects insurance policy
A
A policy provided typically covering defences in design and construction for 10 years called a NHBC National House Building Council
2
Q
Who is responsible for the first two years of a new build
A
The builder is responsible for fixing the defects
3
Q
Good root of title is defined in s44 LPA as
A
Document at least 15 years old
Deals with whole legal and equitable interests in property
Adequate Description of the property
Do not cast doubt on the title
4
Q
What documents are applied for with an OS1 or OS2
A
Official Copies & Title Plan OS1
Official Copy Documents OS2
5
Q
Where will an indemnity covenant be show in the Official Copies
A
In the Proprietorship Register
6
Q
Overriding Interests
A
Persons in actual occupation
Local Land Charges
Legal Easements by Prescription
Leases of 7 years or less
7
Q
Name some adverse matters that will burden the land which should be revealed in the charges register
A
Mortgages
Covenants
Easements
Leases
Notices
8
Q
When and who should undertake a SIM
A
Where a part of the title seems to be unregistered it will show
if any registered properties affect the land
Any pending applications
Cautions
Should also be undertaken if mines and minerals are reserved
9
Q
What will a company search reveal
A
If the company is in existence
any insolvency proceedings
if any fixed or floating charges have been made
10
Q
Proper Execution of Deeds
A
After 31 07 1990
In Writing
Clear it is intended to be a deed
Signed in the presence of a witness
Delivered as a deed (party intends to be bound)
Before 31 07 1990
Signed Sealed and Delivered
11
Q
Execution Rules of Buyers and Sellers
A
Seller MUST always execute a Transfer
Buyer only needs to if DOTor entering into an indemnity covenant
12
Q
What does the words TOGETHER WITH in a conveyance usually mean
A
Easements benefiting the property
13
Q
What does the words EXCEPTING AND RESERVING usually mean in a conveyance
A
Adverse rights or restrictions burdening the property
14
Q
What does the words SUBJECT TO in a conveyance usually refer to
A
Covenants
15
Q
If precise dates of ownership are unclear in a the deeds on purchase of an unregistered land what date should the Land Charges search begin
A
1926
16
Q
Mines and minerals referred being excluded or the right to enter to access those mines and minerals what is the solution
A
Order a Coal Mining Search and raise enquiries
17
Q
Rights benefiting the property what needs to be looked for
A
Express grant right of way referred to in the property register or EOT documents if the property does not immediately abut a highway maintainable at public expense Raise enquiries
18
Q
Death of a party of JTs what is needed
Registered land and co-owner dead what is needed
Unregistered land and co-owners where one party is dead what 3 conditions are needed
A
Always a Death Certificate
RL - nothing further
UL - Check no memo of endorsement, no bankruptcy proceedings, Deed states JT
19
Q
If all of the three conditions cannot be satisfied for co-owners of a JT of unregistered land what is needed
A
Overreaching and RAISE a requisition
20
Q
Death of a party of TIC what is needed
A
Always certified death certificate
Overreaching process
21
Q
Unregistered title can cause concerns as it could have been inadvertently disposed of more than once and the buyer cannot see the will how is this dealt with
A
S36(6) provides a buyer will take good title from a PR provided:-
Conveyance contains a s36 statement
No memo of endorsements
Any disposition is not for valuable consideration
22
Q
What is a s36 statement
A
A statement in the conveyance that the buyer is confirming that there have been no disposition of the same land by the PRs
23
Q
If a restriction is noted on the register what should you do as a buyer and what are the two common restrictions
A
Raise enquiries - Form A & Mortgage Restriction
24
Q
On a sale of part what should a transfer contain about light and air and where will it appear
A
The right to freely build/rebuild on that land and the seller will not be entitled to any rights of light or air over retained land
Appear in the property register/title documents - Raise an enquiry if the extend of the land with the retained land is not apparent
25
Does the BURDEN of RCs run with the land
Yes and will be binding on a buyer following completion - enquiries raised
26
Do positive covenants run with the land
No they do not but can run through a chain of indemnity
27
What does an indemnity look like and where in the register would it appear
In the proprietorship register as - The transfer to the proprietor contains a covenant to observe and perform the covenants referred to in the Charges Register and an indemnity in respect thereof
28
What should a buyer do if there is no indemnity covenant on the tile for positive covenants
Refuse to give a covenant as this will not pass to them and raise enquiries
29
What to do if Missing covenants when the land is subject to them but the nature is unknown
Raise enquiries
30
Does the BURDEN of easement run with the land
Yes and enquiries should be raised
31
Equitable lease will be overriding when …
The tenant is in actual occupation
32
Where will notices be in the register and what two notices are there
Charges Register
Agreed Notice
Unilateral Notice - without consent
33
When are unilateral notices usually used
To protect third party interests such as estate contracts, home rights etc
34
What searches are relevant to all transactions
Personal inspection
Local Search - in two parts
Water and Drainage Search
Environmental Search
Flood Search
35
Will Planning permission always be required for building work on property
No - Only on work classed as DEVELOPMENT
Some works may fall within permitted development rights
36
When should a Chancel Search be requested
If the property has not been disposed of prior to 13 OCTOBER 2013
37
What is a Local Search
It’s comprised of two parts: -
Local Land Charges Search LLC1
Enquiries of the Local Authority CON29 & CON290
38
Does the extent of the Local Search extend to any adjoining properties and what should be done
No it doesn’t and will not reveal any proposals for a change of use/construction to it.
This should be informed to the purchasers
39
The water and drainage search may reveal details of assets owned by the Water Authority within its boundaries what does this mean
That the Water Authority will have a statutory right to access it and it may restrict development of the property
40
If drains and sewers are not adopted who will be responsible for the maintenance
The buyer and they will be responsible for bringing them up to an adoptable standard if Water authority decides to elect to adopt them
Any building works over sewers must need a build over agreement
41
Who is liable if contamination of the land is found
The Polluter and the P cannot be found then liability may fall on the owner
42
What key concern will a mining search reveal
Mining activity and impact on the structural stability
43
What is a greenfield site
Undeveloped land that has never been built on
44
Planning Permission is required for what …
Development
45
Can conditions be attached to planning permission
Yes - these should be checked to ensure they have been complied with
46
Who will obligations of planning permissions and conditions lie with
The buyer as it runs with the land so the buyer receives the benefit of the PP
47
Planning Permission is required for development what does that include
Carrying on building works
AND
Material Change of Use
48
What is the definition of Development
The carrying out of building engineering mining or other operations in on over or under land or the making of any material change of use of any of the buildings or other land
49
What matters do not constitute development
Interior Works
Works that do not materially affect the external appearance
Use of the building for incidental works to enjoy the dwelling
Change of Class in the same use class
50
Matters that do not require planning permission is called what
General Permitted Development
51
Does an Article 4 direction override Permitted Development
Yes
52
Main use Clases
B - General Industrial
C - Residential
E - Commercial - shops other than hot food
F - Schools/Places of Worship
53
If a use does not fall within a use class what is required
Planning permission always E.g. pubs, bars, clubs, hot food takeaway, bingo, cinema, halls
54
What matters which constitute development but do not need Planning Permission are
Small Extensions
Minor works
Changes between use classes
55
What matters which constitute development but do not need Planning Permission is called what
Permitted Development
56
Explain a planning contravention notice
A request for information on potential breaches and it is an offences to fail to respond within 21 days
57
Explain a Completion Notice
Where LA confirm there is a breach of planning it may issue a CN which requires the owners to finish the works within a reasonable time
58
Explain an Enforcement Notice
Where LA satisfied a breach has occurred and this should be rectified. Should specify the breach what remedies are required and served on anyone who has an interest in the property. It takes affect no less than 28 days after issue. Criminal offence to fail to comply which could result in a fine
59
What is a Stop Notice and what is key about it
CAN only be issues following an EN
Requires the owners to stop the works
Criminal offences to fail to comply with the notice
60
What is a breach of Condition Notice
Can be issued in the event of a breach of a condition attached to planning permission
Criminal offences payable by a fine if fail to comply
61
When are Building Regulations needed
For work or construction to ensure that health and safety rules have been followed
62
Where will an Article 4 Direction, Listed Building, Conservation Area
The Local Search
63
Learn the difference between Matter not constituting Development and Permitted Development
Not Development at all
Interior/change of same use/incidental changes
Permitted Development
Small Extensions/Minor exterior changes
64
When acting for a new build from a development what should be in place
agreements with the LA and Water Authority with appropriate bonds in place unless suitable arrangements are in place for private roads
65
Current Editions of Contracts
SCS • Fifth Edition
SCPC • Third Edition
66
Under both SCS and SCPC the seller agrees to sell….
Free from other than those specified in the contract
67
In both full and limited guarantee the seller covenants to what
Have the right to dispose of the property
AND
Will at their own cost do all they reasonable can to give the tile they purport to give
(Sometimes known as further assurance)
68
In addition to Full and Limited Title Guarantee where the seller covenants that they have the right to dispose of the property and will at their own cost do all they can to give assurance they own the property they purport to give what is additionally needed for each
FULL - Free from all charges incumbrances and rights they could not reasonable expect to know
LIMITED - Since the last transfer for value they have not or allowed to be granted any incumbrances charges the property
69
What is the contract rate in the contract for
It’s the rate of interest that will be paid by the defaulting party intended to be a penalty Usually set at 4% above a banks base rate
70
If an interest rate in the contract specifies a bank what should usually be added in the contract
That should the bank cease to publish such a rate such other comparable rate as the Seller shall reasonable require
71
Following service of a notice to complete what can the buyer and seller do
Seller
May forfeit and keep deposit and accrued interest
Buyer
Demand payment of the deposit with accrued interest
72
If a lower despots is agreed where does this need to be noted
Added as a special condition in the contract
73
Under the standard conditions of sale how is the deposit held and the exception
Stakeholder however if before completion the seller agrees to buy a property in E&W they may use all or part in that transaction
74
Under the SCPC how must the deposit be paid
By ELECTRONIC TRANSFER the only way
75
What are the usual special conditions added in a contract (7)
Indemnity Covenant
Apt of a Trustee
Indemnity Insurance
Reduced Deposit
Removal of Fixtures
VAT
Attach Transfer to include all conditions
76
Where will an indemnity covenant be in the title
In the proprietorship register
77
On the sale of a new build during construction who will usually retain the risk of responsibility for insurance on exchange
The Seller
78
VAT on Residential Property
VAT exempt and contract will confirm purchase price and contents are inclusive of VAT
I.e no VAT on top
79
Is there VAT on commercial properties
New (3 years old) - Automatically standard VAT rate (Exclusive of VAT mentioned)
Old - Exempt from VAT unless seller opts to tax at standard rate
80
What will a COT confirm to the lender before they release funds
Charge will be registered as a first legal charge to enable a power of sale
Title to the property will be good and marketable
81
If there are issues to be raised in the COT when should it be submitted to the lender
Before exchange if not issues just before completion
82
Can a solicitor sign a contract on behalf of a client
Yes but best practice not to do so. If do clear consent and written attendance no te
83
Is there an immediate right under the standard conditions to rescind the contract in the event of a delay
No right to rescind of a delay but contractual compensation may be payable
84
Under SCPC who is entitled to compensation
ONLY the Buyer
85
Execution by a company
Affixing Seal if AOA allows
Two Directors
Signed Direct and witness
86
On what two occasions do the Buyer need to sign the Transfer
If indemnity covenants are being entered into
Or
Declaration of Trust needed
87
What is a DS1 and DS3
DS1 - Form executed by lender confirming charge has been discharged
DS3 - Form executed by lender confirming charge of a part been discharged with a plan
88
What needs to be provided where unregistered land had a mortgage
A receipted charge
89
If no completion date set on EOC (which is rare) when is completion due
20 days
90
Law Society’s Code for completion by post states that the documents are sent first class on completion who takes on the risk
The buyer
91
If completion does not take place by 2pm is there an immediate right to rescind
No because time is not of the essence
92
When does TIE begin if completion time has passed
When Notice to complete is served
93
Under SCS who could be liable for contractual compensation for late completion
Either the buyer or the seller
94
95
Calculation for contractual compensation is payable at the contract rate on what
The purchase price less the deposit for buyer
The purchase price inc deposit for seller
For the period of default
96
Where a person Claims contractual compensation for breach of contract failing to complete on the completion date what is deductions and not allowed
The compensation is deducted from any damages (no double recovery)
97
If a notice to complete is served how long does the other party have to complete
10 working days following service - failure to complete at this point allows the IP to rescind
Deposit forfeited and interest payable
98
Who can claim contractual compensation
Either Party under SCS
Only Seller under SCPC
Remember no double recovery
99
How long is the priority period for an OS1/2
How long is the priority period for Land Charges
30 days
15 days
100
What does the seller warrant when completing by post
the seller’s solicitor is warranting that they act for the true owner of the property and agrees to act as agent for the buyer’s solicitor.
101
What is the back up position that completion must take place after EOC where time is not of the essence
20 days
102
Does delayed completion (i.e completing after the agreed date) give the party the right to rescind
No
103
Why is recession not allowed after EOC until notice is served
Because time is not of the essence
104
How long does a party have to complete after notice is served
10 working days (does not include the day was served)
105
under the standard conditions what is the B and S entitled to by way of remedies for not completing after the 10 day completion date has passed
Buyer - Rescind, get back deposit with interest on the deposit at contract rate and damages
Seller - Rescind, keep deposit, resell and damages
106
Standard condition 7.1 allows rescission for what
Misrepresentation subject to the reasonable test in the UCTA
107
Lease assumptions and disregards
Willing L&T
Let with vacant possession
Same terms (except rent)
Term equal to residue
T complied with covenants
Property reinstated if broke
T's occupation
Goodwill of T
Any voluntary improvements by T
108
Refusal of consent to alienation must relate to the LL & T relationship what could be reasonable
Potential conflict with LLs business
Significant breaches
Concerns of assignee
109
When can an application to the LL be made when there is an absolute covenant
When a T wants to carry out works that would be improvements
110
What is the process to apply to a LL when there is an absolute covenant
T serves notice on LL of proposals
LL has 3 months to object or do works for reasonable rent increase
LL does not respond T may proceed
LL objects T can apply to the court
111
If there is an absolute covenant and works are required to comply with the Equality Act what happens to the absolute covenant
It will be upgraded to a fully qualified covenant
112
When will a T be entitled to deduction of the LLs title on grant of a lease
Lease over 7 years and title unregistered
113
When is a lease registerable
A term of OVER 7 years
Precisely 7 years not usually registerable
114
What happens if an under lease is granted on the same term as the original lease
It will take effect as an assignment
115
Will the lender usually want to see the approved final form of the lease before completion if they have a charge over the property
Yes
116
Grant of a lease does the LL need to deduce title for reg/unreg land
REG - best practice but NO obligation
UNREG - must deduce if lease registrable (over 7 years)
NO obligation if under 7 years but best practice
117
Grant of an underlease does the LL need to deduce title for reg/unreg land
LH REG (absolute LH) good practice to obtain FH TITLE but NO obligation
HEAD LEASE
UNREG - LL MUST deduce FH if registerable
REG if good LH LL should deduce if registerable
118
119
What does the standard conditions provide for where a new lease is registerable
Title should be deduced (conditions 11.2.4 and 8.2.4) should be incorporated
120
What should be deduced by the LL on the grant of a lease
Evidence of title
Draft agreement for lease
Draft lease
Planning permission etc
Replies to enquiries
121
What is the purpose of a licence to underlet
To provide the LLs approval to an underlease and gain privity of contract
122
Who is usually a party to the licence to underlet
LL
Head T
Under tenant
123
When is an agreement for lease usually needed
Delay in completion
Works need to be carried out
Another T is in occupation and they need to be surrender on completion of new lease
124
An agreement for lease does it usually incorporate the contracts standard conditions
Yes
125
agreement to agree
In property practice (and contract law generally), an "agreement to agree" refers to a situation where parties, in their initial contract, include a provision that they will agree on certain other terms or obligations in the future.
The crucial point about agreements to agree in English law is that they are generally unenforceable.
Here's why and what it means:
* Lack of Certainty: For a contract to be legally binding, its essential terms must be sufficiently clear, defined, and unambiguous. If a fundamental element of the agreement (like price, key dates, or specific obligations) is left "to be agreed" in the future without a clear mechanism for determining it, the courts will often deem the contract too uncertain to be enforceable.
* No Obligation to Negotiate in Good Faith: English law generally does not impose a duty on parties to negotiate a contract in good faith. Therefore, if a contract states that parties "will agree" on something later, one party can simply refuse to agree without being in breach of contract.
* Distinction from "Heads of Terms" or "Letters of Intent": While similar, "heads of terms" or "letters of intent" are often preliminary documents that outline the key commercial principles of a deal before a formal contract is drafted. They often state explicitly whether they are intended to be legally binding or not. An "agreement to agree" within a seemingly binding contract is different because it attempts to bind parties to a future agreement on essential terms, which the courts typically resist.
In practical terms for property:
Imagine a scenario where two parties agree to sell a piece of land, but the contract states that the exact boundary line or the price of an additional parcel "shall be mutually agreed" at a later date. If they fail to agree on these essential details, a court would likely hold that there is no enforceable contract for the sale of the property.
Exceptions and Nuances:
While generally unenforceable, there are some limited circumstances where courts might try to uphold an "agreement to agree" or a similar provision:
* Objective Mechanism for Agreement: If the agreement provides an objective mechanism for resolving the future agreement (e.g., "to be determined by an independent valuer" or "at a reasonable market price"), a court might be willing to enforce it.
* Parties' Intention and Partial Performance: If it's clear the parties intended to create legal relations and have already partially performed the contract, a court might strive to give effect to that intention, perhaps by implying a reasonable term, provided it doesn't contradict the express terms.
* Agreement to Use "Best Endeavours" to Agree: An agreement to use "best endeavours" to reach an agreement might be enforceable, but it's important to note that this is different from an "agreement to agree." "Best endeavours" typically requires taking active steps to try and reach an agreement, but it doesn't guarantee an outcome.
In summary:
An "agreement to agree" in property practice is generally a risky approach because it can lead to uncertainty and unenforceability. It's usually advisable to ensure all essential terms are clearly defined and agreed upon at the outset to avoid future disputes.
126
What does it mean when an agreement for lease did not annex the lease
The lease has not been agreed and is known as an agreement to agree - leaving the document void for uncertainty
127
When are prescribed clauses compulsory
Granted after 2006
LLs title registered
Lease is registerable
128
What is an FRI lease
An FRI lease (or Full Repairing and Insuring lease) is the most common type of commercial lease in the UK. It places the vast majority of financial responsibility for the property's upkeep and insurance firmly on the tenant.
Here's what it typically means:
* Repairs: The tenant is responsible for all repairs to the property, both internal and external, structural and non-structural. This can be a significant burden, as it often means the tenant is obliged to "put and keep" the property in good repair, regardless of its condition at the start of the lease. So, if the roof was leaking when they moved in, they'd be responsible for fixing it. This is why a Schedule of Condition is crucial for tenants to negotiate at the start of an FRI lease. This document (often with photographs) records the property's state at the lease commencement, allowing the tenant to argue at the end that they only need to return it in no worse condition than documented.
* Insurance: The tenant pays for the building's insurance. Although the landlord will usually arrange the insurance policy (as they own the building), the tenant is responsible for reimbursing the landlord for the premiums. The tenant is also typically required to comply with the terms of the insurance policy.
* Maintenance: Beyond repairs, the tenant is generally responsible for the day-to-day maintenance of the property.
* Service Charge (for multi-let buildings): In multi-let buildings (e.g., an office in a larger block), while individual tenants have FRI obligations for their specific demise, the landlord will typically maintain the common parts (e.g., roof, external walls, common corridors, lifts). The cost of this maintenance and any insurance for the whole building is then recovered from the tenants through a service charge, which is paid in addition to the rent.
* Dilapidations: At the end of an FRI lease, the landlord will usually serve a "Schedule of Dilapidations," which lists all breaches of the repairing covenants and the cost of putting them right. This can be a very substantial sum, and negotiating this is a key part of the lease end process for tenants.
Why Landlords Like FRI Leases: They provide a clean income stream from the rent, with minimal ongoing costs or responsibilities for the landlord regarding the property's physical condition.
Why Tenants Might Dislike FRI Leases: They expose the tenant to potentially significant and unpredictable costs, especially for older properties or long lease terms.
Institutionally Acceptable Lease
An "institutionally acceptable lease" refers to a lease that is structured in a way that makes the property an attractive and low-risk investment for large institutional investors, such as pension funds, insurance companies, or large property investment trusts. These investors are often looking for stable, long-term income streams with minimal management hassle.
129
Instituly acceptable lease
Key characteristics that typically make a lease "institutionally acceptable" (though these can evolve with market conditions) include:
* Full Repairing and Insuring (FRI): This is almost always a prerequisite, as institutions want to offload the responsibility and cost of property maintenance and repair to the tenant.
* Upwards-Only Rent Reviews: This means that at specified review periods (e.g., every 5 years), the rent can only stay the same or increase; it can never decrease, even if market rents fall. This provides certainty of increasing income for the investor.
* Long Lease Term: Traditionally, this meant 15-25 years or even longer, offering a stable income for a considerable period. While market trends have seen shorter leases become more common, institutional investors generally still prefer longer terms where possible.
* Strong Tenant Covenant: The tenant should be financially sound and reputable (e.g., a large national or international company with good credit), ensuring a low risk of rent default.
* Limited Tenant Rights to Assign/Underlet/Alter: While some flexibility is usually allowed, the lease will typically include strict controls over a tenant's ability to assign (transfer) the lease to another party, underlet part of the premises, or make significant alterations. This gives the landlord control over who occupies the property and its physical state, protecting their asset value.
* Minimal Landlord Obligations: Beyond collecting rent and enforcing covenants, the landlord generally wants as few ongoing obligations or liabilities as possible.
* Clear and Unambiguous Terms: The lease must be drafted clearly and precisely, leaving little room for ambiguity or dispute, which could devalue the investment.
Why it's Important:
* Investment Value: A property with an institutionally acceptable lease is more valuable and easier to sell on the investment market. If a landlord wants to sell the freehold of a commercial property, potential buyers (especially institutions) will scrutinise the existing leases. If they don't meet institutional standards, the property will be less attractive and may command a lower price.
* Security for Lenders: If a property owner wants to borrow money against the property, lenders will also look for institutionally acceptable leases as part of their due diligence, as this indicates a more secure income stream to repay the loan.
In essence, an institutionally acceptable lease is one that ticks all the boxes for a sophisticated investor looking for a reliable, low-management, income-generating asset.
130
Do leases
Over 7 years
Between 3/7 years
Under 7 years
Need to be a deed
Yes
Yes
No but good practice
131
On completion does a licence to underlet complete before or after a the underlease
Before completion of the underlease
132
Is SDLT/LTT PAYABLE ON Assignment OR Grants of lease
Yes if over the threshold
133
What are leases for 7 years or less known as
An overriding interest
Where LLs title is registered best practice to get the lease noted in the title by way of an unilateral notice and registration of easements recommended
134
Completion doesn't take place by 2pm on what remedy is the IP entitled to
Compensation at the interest rate In the contract
Can only rescind when notice has been served
135
When NOTICE has been served because of delayed completion what happens if a reduced deposit has been paid
Service of notice means the buyer must IMMEDIATELY pay the 10% deposit
136
If an Easement lasts for only a certain period of time what is it likely to be
An equitable easement
137
When a document is created to transfer an interest in land (eg easement) that does not comply with the formalities for a deed but complies with formalise for a contract what happens
Easement will fail as a legal interest but will be an equitable interest
138
Equitable interests will be protected by what remedy
Specific performance
139
Do overriding interests need to be registered
No
140
Are purchasers bound by overriding interests
Yes
141
Name the 3 overriding interests
Legal leases 7 years or under
Implied legal easements
Occupation with an interest in land
142
A legal lease 7 years or under is binding. Does the T need to prove occupation
No as long as it is in existence
143
Because a LH requires exclusive possession over the control of land can they sue for nuisance/trespass
Yes
144
145
Lease must have a certainty of term what two ways can the lease be
A fixed term
Periodic term
146
The start date for possession of lease can be delayed for how ma h years
21years
147
How does a lease usually come to an end
When one party gives notice
148
Where a lease does not have a start date when is it assumed the lease commences
When the T takes possession
149
Can you charge ground rent on residential leases for 21 years or more
Not anymore not
150
Legal lease over 7 years requirements
Deed and registration
151
Legal lease over 3 years up to 7 years requirements
Deed
No registration
Will be an overriding interest
152
Under 3 years legal lease requirements
No formalities
Will be an overriding interest
Can be oral or in writing
153
Equitable lease requirements
Must satisfy contract requirements
154
If a legal lease failed and doesn't satisfy equitable lease and T moved in what will it be recognised as
An implied periodic tenancy (its legal)
155
Is the T liable for fair wear and tear
Not generally unless there is a clause in the lease
156
If there is a covenant in a Lease allowing assignment or sub letting with the Landlords consent what is implied?
The Landlord must not withhold consent unreasonably
157
What is a reasonable time a LL must respond to a request for consent
RICS suggests 15 days, stating why refused and any conditions
158
Can a LL charge for their Consent?
No for the Consent but can charge reasonable legal fees that are incurred in giving the consent
159
What document will be used for Consent by LL to T re a Covenant
Licence
160
Is it for the Landlord or the T to show any refusal of consent is reasonable?
Landlord
161
What are the LL implied covenants
1. T has the right to quiet enjoyment
2. Not to frustrate the Lease
3. To ensure Repairs
4. To ensure Premises is not defective
162
What are the T's implied covenants?
1. To pay rent
2. To pay rates/taxes
3. To use in a T like manner
4. Not to commit waste (not to alter the state of the land)
5. To allow LL to enter and view
163
What are the available remedies for the Landlord for breach?
NON PAYMENT OF RENT
Sue the Tenant
CRAR
Forfeiture
OTHER BREACHES
Injunction
Specific Performance
Damages
Forfeiture
164
What are the T's remedies for breach of covenants?
Injunction
Specific Performance
Damages
Repudiations
Self-Help
165
Can a Lease expressly exclude self help/set off rights by Ts?
I.e T can do the work and offset against the rent
Yes
166
If the T decides that he wishes to set off repairs against rent what do they need to do?
T must give the LL notice
167
Pre 1996 if a LL does want to sue the original T for a breach of covenant even if the lease in new ownership what do they need to do
Must notify the old T within 6 months with the amount due
168
The requirement not to withhold consent unreasonably applies only to what covenants subject to consent
Alienation covenants
169
A lease is both what in nature
A proprietary interest and contractual
170
If a person has security of tenure what does that mean
They are entitled to occupy past the lease term end date
171
Does a Leaseholder have exclusive possession of the control of their land
Yes
172
Can a leaseholder sue for trespass or nuisance
Yes
173
Does a lease have to have certainty of term
Yes
174
What are the two ways a leaseholder sue can have certainty of term
With a fixed period or a periodic term
175
What does a periodic tenancy mean
That the term is dependant on when the rent is paid for example monthly or weekly or annually
176
Can the date of possession of a lease be delayed and if so for how long
Yes Up to a max of 21 years
177
If a lease has a term dependant on life or marriage what will be the automatic term implied
90 years
178
Who are the Covenantee and Covenantor
Covenantor Makes the promise Burdened Servient Tenement
Covenatee Requests the promise Benefits Dominant Tenement
179
What does the word assignment mean
Passing the remaining of the Lease to another party
180
What is a reasonable time under RICS for responding to a request to a covenant
15 days
181
If a LL refuses consent for a request by T what must they do
IN writing state why refused
182
The requirement not to withhold consent unreasonably apply to what covenants
Alienation
183
In commercial leases conditions do not have to be what for an assignment
Reasonable
184
When a T assigns to a new T there is what between them and what can they do
An automatic contractual relationship and can sue
185
Under an old lease if the old T is persued for the breach and the T pays up what must the LL do
Grant an overriding Lease over the original Tenant making him head tenant and he can forfeit the current T and assign to someone more favourable
186
What does a Licence to Assign give to all parties
Privity of Contract
187
How does Privity of Estate work
Because a lease is a contract its gives the LL and T that contractual relationship
188
Once a lease is assigned to get Privity of Estate what conditions need to be satisfied
Be a L and T Relationship
Be a legal lease
Be legally assigned
Covenants touch and concern the land
189
Under both pre and post 1996 lease making an assignment in breach will mean what
The Tenant will be liable despite the rules
190
Is it date of assignment or date of the lease that the 1996 rules apply
Date of the Lease
191
Under a new lease the T is automatically released what are the 3 exceptions
It related to a personal covenant
T breached before the assignment
The assignment is a breach in itself
192
Under a new lease if the old T agreed to an AGA and he LL persues that T and he pays what does it mean
T can get an overriding lease
193
If a lease has expired what two kinds of leases are protected
Those that have Security of Tenure and will be holding over
Those that are periodic tenancies and will require a notice to quit
194
When does a lease which has end result in a periodic tenancy and what does that mean
When the T stays on land and pays rent
Means they require the LL to serve a notice to quit
195
For OTHER breaches what notice needs to be served and when is ONLY available
S146 notice
Leases which were granted over 7 years with 3 years remaining
196
All land which is co owned is held on what
On trust
197
Joint Tenants need what 4 things
Unity of possession
Unity of time
Unity of interest
Unity of title
198
Is there a limit on how many Beneficiaries there can be
No
199
In a commercial context if purchasers have contributed equally or unequally what is the presumption of co ownership
Tenants in Common
200
In a family context what is the presumption of coownership even if the person makes unequal payment to the property
Joint Tenants
201
Where the land is held as JTs and one severed what would be the split
Always equally between number of people even if they contributed differently
202
Must severance take place before death
Yes
203
Can severance be reversed
No
204
What three ways can severance take place
Written notice and it does not need to be signed
Mortgage or lease or bankrupt their share
Mutual Agreement which can be orally made
205
Where a lender has an unsecured loan what is the remedy that is available to the lender
Contractual Claim
206
An equitable mortgage is usually what
A failed legal mortgage
207
Can the right of redemption be removed or restricted
No
208
Where a bank has a secured loans and they do not recover all their fees from the sale of the property what can they do to
Recover by way of a contract claim against the borrower
