Hamlins
9 Contributions by Hamlins Experts
PRECEDENTS
PRIVATE & CONFIDENTIAL
[ insert name and address of surveyor ]
[ insert date ]
Dear [ insert name of surveyor ]
[ insert case heading ]
INSTRUCTIONS TO ACT AS RIGHTS OF LIGHT SURVEYOR CONFIDENTIAL AND LEGALLY PRIVILEGED LETTER OF INSTRUCTIONS/TERMS OF ENGAGEMENT
I represent [ name of client ] in relation to the property identified as [ property description ] (the Property), of which my client holds the leasehold/freehold [ delete as applicable ] ownership, with the title recorded at HM Land Registry under title number [ insert title number ].
I write to confirm my client’s instructions for you to prepare a report (the Report), together with any follow-up reports and/or advice requested, and, if appropriate in due course, to act as an expert in any court proceedings, all in relation to rights of light matters at the Property arising from the proposed
Property Disputes
Q&As
Q&A
In this Q&A, the tenant is termed the immediate tenant, while the intended subtenant is called the proposed tenant. Any subtenants of the proposed tenant are described as potential subtenants. As the exact text of the lease covenants is unknown to us, we proceed on the basis that the prohibition covenant mirrors that in Nemcova v Fairfield Rents, under which the lease obliged occupants not to use the premises for any unlawful or immoral purpose, and ‘for any purpose whatsoever other than as a private residence’. We also proceed on the basis that the alienation clause includes a requirement for the immediate tenant to adhere to the provisions set out in the superior lease in full...
Property
Q&As
The position will vary according to the particular tenancy agreement in place for the parties. For this Q&A, we proceed on the basis that the landlord is not a social housing provider and we have not addressed the steps for regaining possession following service of a valid s 21 notice, nor issues bearing on the validity of any s 21 notice. The phrasing in such an AST creates uncertainty about the nature of the tenancy currently in effect. Whether a notice is issued under s 21(1) or s 21(4) of the Housing Act 1988 (HA 1988), the minimum notice period that must be provided is two months...
Property Disputes
Q&As
This Q&A relates to whether the landlord can serve a schedule of dilapidations in respect of partitioning.
It considers if the presence of partitioning permits the landlord to issue a schedule of dilapidations. It also addresses whether the existence of partitions could adversely affect the tenant’s ability to determine the lease by exercising a break; that latter point is not dealt with in this reply. For the purposes of this Q&A, it is assumed that the tenant, with the landlord’s authorisation, installed the partitions during the term of the earlier lease (the Original Lease), and that, when negotiating the new contracted out lease (the Current Lease), the partitions were not raised. In evaluating the tenant’s responsibilities to remove the partitions, this answer is necessarily constrained without sight of the leases and any relevant licences granted in connection with the works. The
Property
Q&As
For the purposes of this Q&A, it is assumed the roof is not demised to the tenant and that the tenancy is in writing. The respective obligations of landlord and tenant for roof repairs will be dictated by the lease terms.
Repair
Leases typically place responsibility on the landlord to repair retained parts. In the commercial context, absent an express covenant, the landlord gives no assurance that the premises are, or will remain, physically suitable for the intended use, and is not obliged to undertake repairs except those required by common law or statute. Neither of these imposes particular fitness obligations on a landlord of business premises towards a tenant simply by reason of the landlord and tenant relationship...
Property
Q&As
Case study
A landlord serves a section 25 notice under the Landlord and Tenant Act 1954 (LTA 1954), ending the lease on the contractual expiry date and contesting any renewal on ground f. No claim has yet been brought. It is expected, however, that the tenant will start renewal proceedings, without making an interim rent application. The landlord has issued an invoice for the yearly rent, which the lease stipulates is payable in advance, covering the year commencing on the contractual expiry date...
Assume for this Q&A that the tenant does issue proceedings, so the lease carries on beyond the contractual expiry date and the tenant stays in occupation, preserving protection under LTA 1954, Pt II...
Further assume the parties remain in discussions about whether the tenant will vacate on the notice expiry, and that the lease requires rent to be paid
Property Disputes
Q&As
In responding to this Q&A, the following assumptions are made:
the land is not a residential property
the land is registered
the period of possession occurred after October 2013 and the 'new rules' apply to it
Definitions used for clarity:
the owner is 'the registered proprietor'
the third party is 'the squatter'
For a squatter to pursue an adverse possession claim against the registered proprietor, the squatter must demonstrate, for the requisite period of ten years, that both of the following are satisfied:
the claimant enjoyed uninterrupted factual possession of the land for that period ('factual possession'); and
the claimant intended to possess the land throughout that period ('intention to possess')
These elements must be established across the whole of that period.
Factual Possession
To establish factual possession, the squatter must have exercised a sufficient degree of exclusive physical control over the land. What amounts to sufficiency is
Property
Q&As
Case study
A one-year fixed term assured shorthold tenancy (AST) was initially granted, ending in February 2015. With the fixed term concluded, a statutory periodic tenancy has commenced. The landlord fears they might have failed to comply with duty to supply prescribed information; can they issue a section 21 notice to bring the statutory periodic tenancy to a close? Since the term expired, the tenancy continues on a statutory periodic footing.
How to rent checklist
The obligation to provide the publication ‘How to rent: the checklist for renting in England’, issued by the Department for Housing, Communities and Local Government, arose under Deregulation Act 2015 (DA 2015). However, amendments introduced by that Act do not extend to fixed term ASTs granted before 1 October 2015, even where agreements roll into a statutory periodic tenancy after 1 October 2015. This remains the stated position
Property Disputes
Q&As
The answer on the contractual provisions in the tenancy agreement.
On the face of it, the tenant must secure consent before commencing any works. Where that applies, the tenant cannot compel the landlord to grant consent after the fact for alterations, save where the landlord chooses to agree. Should the landlord decide to issue consent retrospectively for any alterations, the landlord will set out the conditions and requirements on which such consent is given. These may include timing, scope, reinstatement, and any associated costs...
Property
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