Legal Q&A

Proceeding on the basis that the legal mortgage is valid and duly executed, the only flaw is a failure to register. The question concerns what remedies are available where a mortgage remains unregistered. Where a valid charge is created by way of legal mortgage but not entered on the register, it takes effect in equity as an equitable mortgage......

Lease or licence? In Street v Mountford, the House of Lords set out the core indicators of a tenancy. These focus on the substance of the arrangement rather than the label attached to it: exclusive possession of specified premises Although the payment of rent may suggest a tenancy, it is not essential. Whether the proposed arrangement is a lease or a licence turns on the agreement taken as a whole; where the parties in reality confer exclusive possession, that result cannot be avoided by calling the document something else. What counts is the essence of the bargain, not its outward form or chosen description. Even where the paperwork is properly framed at the outset as a true licence, the parties’ subsequent behaviour may alter the character of the arrangement so that a tenancy is later created. For further discussion, see Practice Note: Leases and licences of...

Under the Landlord and Tenant Act 1987 ( LTA 1987), some eligible tenants of properties are given a right of first refusal. In other words, where a landlord intends to dispose of its interest in the property (whether as freeholder or superior leaseholder), it must first offer that interest to those qualifying tenants first......

At common law, A has no entitlement to go onto B’s land to undertake repairs to A’s property. In the absence of an express right, or B’s permission, doing so would constitute trespass. Nevertheless, A does enjoy certain limited rights under the Access to Neighbouring Land Act 1992 ( ANLA 1992). Under section 1(1) of ANLA 1992, if A wishes to enter B’s land to carry out works to A’s land, and B refuses consent, A can apply to the court for an access order, in such circumstances and situations......

The Land Registration Act 2002 ( LRA 2002) introduced a new framework for the law of adverse possession in relation to registered land, as provided by LRA 2002, Sch 6. The revised regime offers greater protection for landowners whenever a claim for adverse possession of land is brought. Simply having adverse possession for a period exceeding twelve years no longer means the land will have been acquired by the adverse possessor. Rather, following a continuous period of ten years’ adverse possession, the squatter may apply to be registered as proprietor of that land under the scheme, as set out therein......

In such circumstances, the basis for relief would more probably be mistake or misrepresentation, rather than a breach of contract on these facts...

Easements relating to demised property: Hill and Redman’s Law of Landlord and Tenant [1028] sets out a helpful account of the operation of section 62 of the Law of Property Act 1925 ( LPA 1925) in the context of leases: in summary, a lease of land, or of land with buildings, brings with it, without express wording, all easements belonging or thought to belong to the demised property or any part of it, or which at the date of the lease were occupied and enjoyed with it or any part, or treated or recognised as part and parcel of, or appurtenant to, the demised property or any part, unless the lease makes a contrary intention clear. In this matter, this Q& A confirms that the effect of LPA 1925, s 62 has, as is customary, been excluded, and therefore we do not consider that...

Where a tenant suspects their initial break notice might be defective or invalid, they may issue a further break notice, as explained in Practice Note: Break clauses and notices—service. The legal basis derives from Allam & Co Ltd v Europa Poster Services Ltd, a decision about a landlord giving a notice to quit. Nevertheless, the reasoning is equally applicable to a tenant’s service of a break notice. Set out below is the pertinent chapter taken from Halsbury’s Laws of as reproduced below......

If a landlord fails to comply with a repairing duty in a lease, the tenant is entitled to damages for the loss resulting from that breach. The purpose of those damages is to restore the tenant to the position they would have occupied had the covenant been fulfilled. See, for instance, Langham Estate Management Ltd v Hardy......

This Q& A raises the effect of a tenant vacating property before the end of a fixed-term tenancy agreement. A tenancy benefits from assured shorthold tenancy ( AST) protections under the Housing Act 1988 ( HA 1988) so long as the tenant — or, for a joint tenancy, at least one tenant — occupies the dwelling house as a sole or principal home. While that position continues, the safeguards of HA 1988 apply; once it no longer does, those protections fall away. However, simply stopping occupation of the dwelling house as an only or principal home does not, in itself, terminate the tenancy. Accordingly, when a tenant moves out, the tenancy does not automatically end. The tenant remains bound to observe and perform the covenants set out in the tenancy agreement until the contractual fixed term comes to an end......

The starting point The starting point is that, where the property comprised in the tenancy is, or includes, premises occupied by the tenant and occupied for the purposes of a business carried on by him, or for those purposes together with others, the tenancy benefits from protection under section 23(1) of the Landlord and Tenant Act 1954 ( LTA 1954). Save for any right of forfeiture, surrender, or the tenant’s service of a notice to quit, the tenancy can only be ended in accordance with LTA 1954, s 24(1), and otherwise not. The practical result is that, when the contractual term expires, the tenancy continues for as long as the premises remain occupied by the tenant for the purposes of a business, and it does so notwithstanding expiry of the fixed term. However, the parties may agree that the tenancy they are to enter into will not...

If, after a landlord has retaken possession of the premises (whether by peaceable re-entry, under a court order, or because the lease has ended by effluxion of time or under a break notice, etc.), the previous tenant leaves goods behind, unless the lease expressly addresses situation, the landlord assumes the role of involuntary bailee of those items and may incur liability for conversion if they sell the goods and set them off against arrears, or liability in damages if they discard or dispose of the goods......

Section 26 tenant’s request for a new tenancy As you will be aware, a business tenancy can be brought to an end by serving a tenant’s request for a new tenancy under section 26 of the Landlord and Tenant Act 1954 ( LTA 1954). The request must identify the date on which the new tenancy is to commence, and the current tenancy ends (subject to interim continuance under LTA 1954, s 64) immediately before the date stated in that notice. A section 26 notice is valid only if given by a tenant holding under: a term of years certain exceeding one year, whether or not continued under LTA 1954, s 24, or a tenancy granted for a term of years certain, and thereafter from year to year. The request must set a start date that is no less than six months and no more than 12 months from the date the...

When a tenant qualifies to seek a fresh lease under Part II of the Landlord and Tenant Act 1954 ( LTA 1954), expenses are liable to arise both through any litigation and in drafting a new lease that might, in the end, be granted without the need for a contested hearing. This issue concerns the degree to which the landlord may oblige the tenant to cover the costs it incurs in preparing that new lease after a discontinuance, for whatever reason... A tenant enjoying the protection of LTA 1954, Pt II will forfeit the right to claim a new tenancy unless proceedings are started within the time limits set by LTA 1954, s 29A, although those limits can be extended by written agreement and often are where negotiations are advancing with vigour. Because a failure to commence proceedings in time means the...

Forfeiture Forfeiture is a contractual mechanism that permits a landlord to terminate a tenancy when the tenant breaches the tenancy terms. This can be achieved either by peaceable re-entry to the property or by starting court proceedings. The tenant retains the ability to seek relief from forfeiture. This Q& A does not clarify whether the lease in question is commercial or residential. For commercial lettings, a landlord cannot exercise forfeiture without first serving a notice under section 146 of the Law of Property Act 1925, setting out the breach and requiring the tenant to remedy it. However, no section 146 notice......

It is presumed the intermediate tenancy remains in force, and a sub-tenancy has been created in breach of covenant. In that case, the landlord is unable to evict the sub-tenant directly......

Under section 40B of the Landlord and Tenant Act 1954 ( LTA 1954) Where a person is served with a notice under LTA 1954, s 40 and does not meet the obligation to supply the information requested and required, section 40B of the Landlord and Tenant Act 1954 allows them to be the subject of civil proceedings for breach of statutory duty; in those proceedings the court may require that individual to duly perform the duty and can also grant damages as well. See also: Duties of tenants and landlords to give information to each other; in general: Halsbury's Laws of England [1595]. A breach of statutory duty is a standalone tort recognised at common law, in respect of which the......

What are the formality requirements for assigning a commercial lease? There are three principal formalities for assigning a lease. First, the agreement to assign must be in writing and signed, and it must contain all terms expressly agreed by the parties in a single document or, if contracts are exchanged, in each counterpart (section 2 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989)). Second, the assignment must be carried out by deed, even where the lease itself was originally granted orally (section 53 of the Law of Property Act 1925; Crago v Julian). Third, if the lease being transferred is a registered lease, the assignment only completes once it has been registered at HM Land Registry (section 27(1)(a) of the Land Registration Act 2002 ( LRA 2002))......

Fittings Fittings, sometimes referred to as chattels, are not considered part of the land and, unless there is an express agreement to the contrary, they are not included in the sale of the property. In the absence of any such express provision, and on the assumption that the transaction required vacant possession, those fittings ought to have been taken away by the former landlord prior to completion. The general position regarding fittings left in situ at completion is, subject to the de minimis rule, that the seller must see to it that any goods and rubbish are removed from the property......

Costs under LRHUDA 1993, s 60 As a broad rule, when a notice is given under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993), the tenant who gives it is liable—so far as they have been incurred by any relevant person acting in pursuance of the notice (for example, the landlord)—for that person’s reasonable costs: LRHUDA 1993, s 60(1). In addition, if the section 42 notice later ceases to have effect, or is deemed withdrawn, the tenant’s liability under this section is for the costs incurred by any person only up to that time (the precise ambit is set out in LRHUDA 1993, s 60). Accordingly, LRHUDA 1993, s 60 raises two issues where an error occurs when launching a tenant’s claim for a new lease: Does a purported section 42 notice that is invalid for some reason still fall...