Legal Q&A

Common law rules of service At common law, methods of service govern notices given under section 21 of the Housing Act 1988 ( HA 1988) to recover possession of an assured shorthold tenancy. However, any contractual service terms in the tenancy agreement can override them, so the agreement needs careful review......

A fundamental feature of any lease is that the tenant enjoys exclusive possession for the term. Refer to Commentary: Distinction between lease and licence: Hill and Redman’s Law of Landlord and Tenant [290]–[341]. The landlord has no general entitlement to enter the demised premises and must rely on an express right to gain access and undertake repairs. As stated in Commentary: Rights of entry to carry out works and recover costs: Hill and Redman’s Law of Landlord and Tenant [3569], ‘ Clauses which expressly reserve rights of entry to the landlord for particular purposes will be strictly construed and the court will be reluctant to imply additional rights in the landlord’s favour. Thus a covenant allowing the landlord to enter demised premises to carry out works was held not to confer a right to enter to carry out works of...

No particular claim form applies to proceedings that include a request for final injunctive relief. The standard factors for selecting the suitable claim form, as described in CPR 8.1, still apply. The principal question is usually whether the court will need to resolve a material factual dispute in order to determine the claim. While the Part 8 route may look simpler, opting for it can be tempting but, in practice, often results in increased costs and delay where the Part 7 procedure is more appropriate......

The Electronic Communications Code (the Code) The Electronic Communications Code (the Code) appears in Schedule 3A, Part 1 to the Communications Act 2003 ( CA 2003) and has applied in present incarnation since December 2017. Where a prior agreement has lapsed after 28 December 2017 and lacks protection under Part II of the Landlord and Tenant Act 1954 ( LTA 1954, ss 23–46) — in which event the LTA 1954 process must be used instead of the CA 2003, Sch 3A, Pt 5, para 33 route (see Vodafone v Hanover Capital) — either party is entitled to ask the tribunal to vary or replace the agreement by making an application seeking modification or replacement of the agreement......

Planning obligations and local land charges A planning obligation made under a section 106 agreement constitutes a local land charge for the purposes of the Local Land Charges Act 1975 ( LLCA 1975) and, accordingly, ought to be entered on the local land charges register as a local land charge. A local authority search should disclose planning obligations in relation to the property being searched against. If an obligation has not been recorded as a local land charge, it nonetheless binds a purchaser of the land, although the purchaser may seek compensation for any loss suffered as a consequence of the absence of registration. For more details, see Practice Notes: Planning obligations—key points and Planning local authority searches. Enforcement of planning obligations Section 106(4) of the Town and Country Planning Act 1990 ( TCPA 1990) states that a section 106 agreement may stipulate that a person ceases to be...

Under regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements ( England) Regulations 2015 ( SI 2015/1646), the prescribed obligations apply to tenancies granted on or after 1 October 2015, but exclude statutory periodic tenancies beginning on or after 1 October 2015 where they followed an AST granted before that date. Consequently, if the original fixed-term tenancy was granted on or after 1 October 2015, the prescribed requirements apply to both the fixed term and also to the statutory periodic tenancy thereafter arising on expiry of that term......

Under section 11 of the Landlord and Tenant Act 1985, landlords of specified residential tenancies are required, among other duties, to keep the installations in the dwelling-house for space heating and heating water in good repair and proper working order. A tenancy might also impose express duties on a landlord concerning provision of heating and hot water. See Practice Note: Residential tenancies—landlord’s implied covenant of fitness for human habitation and statutory obligation to repair. Where......

The issue of whether a given dealing is curtailed by a lease, whether approval is necessary and, if so, from whom, turns upon the interpretation of the relevant covenants undertaken by the parties......

When a tenant applies for a fresh business tenancy within the scope of the Landlord and Tenant Act 1954 ( LTA 1954), any disagreement about the wording of that renewed tenancy is resolved by the court in line with LTA 1954, ss 32–35. In particular, LTA 1954, s 35(1) is central to how the court exercises its discretion when settling the clauses of a replacement lease. Although a tenant might invite the court to consider a side letter when fixing the terms of the new letting, a side letter is unlikely to secure the inclusion in the new lease of rights that did not feature in the previous instrument or earlier lease overall......

Farm business tenancies—overview From 1 September 1995, the majority of lettings of agricultural land fall within the category of farm business tenancies under the Agricultural Tenancies Act 1995 ( ATA 1995). The present question concerns how a landlord may terminate such a tenancy where the tenants hold as co-owners. A letting qualifies as a farm business tenancy for the purposes of the ATA 1995 if the business conditions are satisfied together with either the agricultural condition or the notice condition. In essence, the land must, from the start of the tenancy, have been cultivated for the purposes of a trade or business, and either the tenancy’s nature is wholly or partly agricultural, or the parties served a notice before entering into it confirming that it would be treated as such. Subject to limited exceptions, the ATA 1995 supersedes the...

This Q& A This Q& A explores the steps administrators should take to contest a landlord’s attempt to forfeit a lease by peaceable re-entry, carried out unaware of an interim moratorium triggered by lodging a notice of intention to appoint administrators ( NOI). An NOI is to be lodged by the directors or the company in advance of making an out of court appointment pursuant to Schedule B1, paragraph 22, of the Insolvency Act 1986 ( IA 1986). This Q& A does not address a case where no NOI has been lodged. Where a company or its directors intend to appoint an administrator via the out of court route, they begin by filing an NOI, which imposes an interim moratorium under IA 1986, Sch B1, paras 44(2), 44(4). After the NOI is placed before the court, notice must also be served on the...

A landlord of commercial premises let under a lease may invoke the mechanism in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007) to recover rent due from the tenant under that lease. This mechanism is known as commercial rent arrears recovery ( CRAR) ( TCEA 2007, s 72(1)). When TCEA 2007 commenced on 6 April 2014, CRAR supplanted the landlord’s former common law right to distrain, which from that date was abolished ( TCEA 2007, s 71). TCEA 2007, accordingly, provides a complete statutory code defining the scope of the landlord’s remedy where rent on commercial premises is outstanding under the CRAR regime. If a tenant leaves rent unpaid, the landlord may serve a notice on any subtenant specifying the sum it is entitled to recover under CRAR ( TCEA 2007, s 81). That notice takes effect after 14 clear days...

When the fixed term of an assured tenancy (including an assured shorthold tenancy) ends and the tenant remains in occupation, a statutory periodic tenancy arises under section 5(2) of the Housing Act 1988. To end that statutory periodic tenancy, the landlord may proceed using either the section 8 or section 21 route. The section 21 option is usually preferable, as no grounds need to be proven, unless the landlord cannot meet the pre-conditions for serving a section 21 notice. In those circumstances, a section 8 notice can be used, provided the landlord can rely on one of the specified grounds. For fuller guidance, see Practice Note: Assured and assured shorthold tenancies—terminating, particularly the sections ‘ Method of landlord termination’, ‘ Section 8’ and ‘ Section 21—pre-conditions to service’......

Service of a notice to quit/notice to end the licence was not required. The lodger/licensee occupied solely by way of goodwill. No periodic licence was ever created or granted......

If a lease was granted at undervalue, you are the 3rd owner, and you knew it was at undervalue, if creditors ask for an order returning the property to the original owner you cannot claim relief? Transactions at an undervalue ( TUVs) are regulated by the Insolvency Act 1986 ( IA 1986). The relevant provisions are: sections 238, 240 and 241 of the IA 1986 for companies sections 339 to 342 of the IA 1986 for individuals These powers are available to trustees in bankruptcy, liquidators (in both compulsory and voluntary liquidations), and administrators. They permit the office-holder to review dealings made by the insolvent person or company in the lead-up to insolvency and to assess whether assets should be recovered for the insolvent estate. In particular, an order under: section 241 of the IA 1986 (for companies), or section 342 of the IA 1986...

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...

Leasehold Reform, Housing and Urban Development Act 1993, Chapter II ( LRHUDA 1993) Chapter II of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) specifies process for exercising right to obtain a new lease......

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...

Damages After the lease ends, a landlord’s terminal dilapidations claim lies in damages. The recoverable sum is determined by common law rules for assessing loss arising from breach of the repairing covenant, but is curtailed by the statutory ceiling in section 18(1) of the Landlord and Tenant Act 1927 ( LTA 1927). At common law, the benchmark for disrepair is the reasonable expenditure required to restore the premises to the condition they should have been in at the point of lease expiry. The claim for damages may, in addition, encompass foreseeable knock-on losses, including rent foregone during any period when the state of disrepair prevents the property being relet......

The Landlord and Tenant ( Covenants) Act 1995 ( LTCA 1995) The LTCA 1995 does not extend to “old tenancies”, that is, those granted before 1 January 1996. Consequently, where the sale contract is silent on the matter, the entitlement to pursue the tenant for pre-completion rent arrears in respect of such “old tenancies” automatically passes to the purchaser with the transfer of the reversion (see the Law of Property Act 1925, s 141; Claims to the Possession of Land, paragraph B4.2; and Hill and Redman, Division A, Chapter 4, paragraph 1087). That entitlement is a chose in action, which can be expressly reassigned to the seller......