leases

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  • Created by: Rachel
  • Created on: 03-04-14 11:55
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  • Leases
    • There are 3 characteristics of a lease
      • Exclusive possession
        • must be exclusive possession for lease to exist
          • this means tenant has control over anyone who enters the premises and can exclude everyone (incld. landlord)
          • if someone occupying property doesn't have exclusive possession - can only claim a licence
        • no exclusive possession if ...
          • the land lord is entitled to move the occupiers from room to room
            • Westminster City Council v Clarke
          • other rules - may have to share w/ others, be in the room by Xpm & can't have castors after that time
          • there is merely exclusive occupation as a hotel guest
            • Abbey-field (Harpenden) Society Ltd v Woods 1968
          • services are provided or if the premeis are provided as a part of an employment contract e.g.:servant
        • will be exclusive possession if the provision of services/retention of the key is a sham
          • Ashlan v Murphy 1990
            • landlord can retain keys but still has to request entry from tenant
      • A term (period of occupation)
        • there must NO uncertainty in the period of the lease
          • commencement and duration must be clear on the lease
        • periodic tenancies are saved as each period is determined by the period for which rent is payable
        • maximum date of duration MUST be certain at the start of the lease
          • Lace v Chantler 1944
            • lease granted for the 'period of the war' - void as at the time of grant, no one had an idea of how long the war would last - thus when lease would come to an end
          • Prudential Assurance v London Residuary Body 1992
      • Rent (or other consideration)
        • any consideration paid to the landlord in return for the use of the premises
        • usually $$$ but can be paid in kind e.g.: benefits
        • possible to have a lease w/o rent
          • Asburn Anstalt v Arnold 1989
        • if rent is payable then it must be clearly stated in terms of the lease
      • just because people term the agreement a licence/lease doesn't mean that is os one of them - MUST LOOK AT THE NATURE OF THE AGREEMENT
    • Creation of a lease
      • Creation a lease exceeding 3 years
        • must be made by DEED (s52(1) LPA 1925)
          • must be signed, sealed & delivered
          • If lease is for 7 years or more - won't take effect until registered under LRA 2002
        • After Spet 1989 a contract to grnt lease must satisfy s(2) 1 LP (MP) Act 1989
          • agreement must be in writing, incorporate all terms, signed by both parties
            • not satisfied- no equitable lease will occur
      • Creation of a lease LESS than 3 years
        • may be created oral or by a written agreement
          • BUT MUST
            • take effect in possession
              • lease must begin at date of grant and not in the future.
              • even if lease is less than 3 years must be created by deed if its to take effect in the future
            • at the best rent possible which can be reasonably obtained w/o taking a fine or premium
      • Equitable lease may arise when
        • 1. defects in grant/transfer of title
        • 2. failure to apply for registration under LRA 2002
        • 3. contract to create/transfer a leasehold term
        • 4. grant of a lease by the holder of an equitable estate
        • Arguemnts in Walsh v Lonsdale for an equitable of legal lease
          • Equitable lease
            • act of entering the property& paying rent supported the written agreement
            • agreement was a written agreement - not enforceable at law for a lease of 7 years w/rent payable in advance
            • lease would be enforceable in equity under equitable principles
          • Legal lease
            • tenant had an implied lease because he had possession of property& paid rent
            • lease would be an annual tenancy b/c rent was paid at 6 monthlyintervals
            • as rent has been paid and accepted in arrears the law presumed that it was a term in the legal lease and landlord couldnt change to claiming rent in advance
    • Terms in a lease
      • Landlords and tenants have obligations under the lease
        • Landlords covenants
          • covenant to allow tenant quiet enjoyment
            • tenant is guaranteed the right to enjoy property w/o
              • interference from anyone else claiming rights in the land
              • anything interfering w/ enjoyment of premesis e.g.: allowing the roof to leak
              • if tenant can prove they are subject to harassment or unlawful eviction this is a breach
                • Lavender v Betts
                  • removal of windows and doors
                • Kenny v Preen
                  • persistent threats w/ resulted in tenant leaving
                • Southwark v Mills
                  • tenants complained about excessive noise from neighbouring flats due to poor quality of soundproofing
                • won't be a breach if it causes inconvenience rather than genuine interest
                  • Browne v Flower
          • covenant that the landlord won't derogate from his grant
            • GP: must not take away that which you have given
              • Landlord can't take away from the tenant any rights that have been granted under the lease
          • covenants that the premises are fit for the purpose for which they are let or are habitable
        • Tenants covenants
          • 1. pay rent
          • 2. pay rates and other taxes on premises
          • 3. liabe for damage - can't commit an act/omission that alters state of premises
          • 4. duty to allow the landlord to view the premesis
            • must allow landlord to enter at a pre-arranged time if landlord is under a duty to repair
    • Remedies
      • Distress
        • non-payment of rent
          • can be enforced w/o court proceedings
          • landlord sells goods belonging to tenant
            • landlord goes onto premises and take equivalent value of goods to the outstanding amount owed in rent
      • Forfeiture
        • can be used for non-payment of rent and breach of other covenants
          • non-payment of rent
            • must be formal rent demand (not necessary if there are 6 months outstanding and the good on premises available for distress are less than amount needed to cover rent)
          • other breaches of covenant
            • damages/injunctions
            • The 146 notice
              • 1. tenant must be in breach of a covenant - other than non-payment of rent
              • 2. tenant must be given chance to remedy the breach or apply for relief from forfeiture
              • 3. notice won't be valid unless it specifies breach
              • 4. must require tenant to remedy the breach if it can be remedied
              • 5. requires tenant to pay compensation for breach
              • circumstances where 146 doesn't apply
                • Rugby School v Tannahill
                  • premises used as brothel - breach was irremediable and it didn't matter that the landlords notice didn't require the tenant to remedy the breach
                • Expert Clothing Service & Sale v Hillgate House
  • Rent (or other consideration)
    • any consideration paid to the landlord in return for the use of the premises
    • usually $$$ but can be paid in kind e.g.: benefits
    • possible to have a lease w/o rent
      • Asburn Anstalt v Arnold 1989
    • if rent is payable then it must be clearly stated in terms of the lease

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