Legal Q&A

Major revisions to the section 21 framework followed the Deregulation Act 2015 ( DA 2015), which, inter alia, amended the Housing Act 1988 ( HA 1988), the Housing Act 2004 and the Assured Shorthold Tenancy Notices and Prescribed Requirements ( England) Regulations 2015 ( ASTN Regs 2015), SI 2015/1646. By s 37 DA 2015, section 21 gained an enabling power for regulations to stipulate the prescribed form of a section 21 notice, and the ASTN Regs 2015, SI 2015/1646 were made accordingly. Under reg 1 of the ASTN Regs 2015, SI 2015/1646, the regime applies to an assured shorthold tenancy ( AST) of a dwelling-house in England granted on or after 1 October 2015; however, it does not extend to a tenancy which arises on or after that date upon the termination of an AST that had been granted before then......

An unincorporated charity lacks its own separate legal personality and, in practical and legal terms, does not exist as a distinct body that can enter contracts or own property. Consequently, any property is held and any legal dealings are undertaken solely through, and in the names of, its trustees. Under section 117 of the Charities Act 2011 ( CA 2011), ‘charity trustees’ are those who exercise overall control and manage the charity’s administration. Trustees of a charity ought to be recorded with the Charities Commission; however, this does not invariably happen, particularly in the case of smaller charities operating with a rotating board. The identity of the trustees will ordinarily be established by reference to the charity’s charitable articles......

Chapter II of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) Under Chapter II of LRHUDA 1993, a qualifying tenant may secure a further lease of a flat by duly serving a notice on their landlord pursuant to LRHUDA 1993, s 42, with the term 'landlord' defined by LRHUDA 1993, s 40. Section 40 stipulates that, for a lease held by a qualifying tenant of a flat, the landlord is the person who owns the interest in the flat that stands in reversion on expiry of the tenant’s lease and which comprises either a freehold estate or a leasehold estate of sufficient length to enable that person to grant a new lease in accordance with LRHUDA 1993. Consequently, the party who is the immediate landlord may, in some circumstances, not be the 'landlord' for the purposes of LRHUDA 1993......

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......

The Housing Act 2004 ( HA 2004) The HA 2004 brought in obligations concerning the safeguarding of tenancy deposits, which have been amended on a number of occasions since their introduction. The rules are complex and technical in nature, yet breaches can furnish a defence to possession proceedings under section 21 of the Housing Act 1988 ( HA 1988), and may require the landlord to return the deposit and pay a financial penalty of between one and three times the deposit amount for non-compliance......

Section 17 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) provides that: (1) This provision applies where a person (“the former tenant”) has, as a consequence of an assignment, ceased to be the tenant under a tenancy, but either: namely that (a) in the context of a new tenancy, has, under an authorised guarantee agreement, guaranteed his assignee’s performance of a tenant covenant of that tenancy under which any fixed charge is payable; or (b) in relation to any tenancy, still remains obliged by that covenant under that tenancy, notwithstanding assignment......

This Q& A assumes that the lease was disclaimed by a liquidator for the insolvent tenant. On a disclaimer of the lease, the insolvent company's rights, interests and liabilities fall away; however, the disclaimer leaves untouched the rights or liabilities of any other person, save only so far as is necessary to release the company from liability (section 178(4) Insolvency Act 1986 ( IA 1986)). Consequently, where a mortgage is in place, the lease is treated as continuing to exist so as to give effect to, and protect, the mortgagee's rights in that scenario......

See Practice Note: Negotiation guide—insurance clauses—commercial leases In Beacon Carpets v Kirby, the landlord had a duty to insure, yet could not secure planning consent needed for the reinstatement of the premises......

While an assignment of a tenancy has to be executed as a deed, a landlord’s licence to assign need not be by deed unless the lease expressly stipulates that the licence must be in deed form. Where there is no express clause mandating a deed, a landlord’s demand that consent is provided only via deed may constitute an unreasonable condition to consent and, consequently, an unreasonable refusal to grant consent. You might also find helpful: Practice Note: Landlord's consent to assign or underlet Assignment and underletting—overview......

Whether a covenant is infringed hinges on the facts and the precise wording of the lease covenant. Assigning underletting, parting with or sharing possession Assignment A promise 'not to assign' or 'not to assign or otherwise part with' the premises is breached only where there is a legal assignment of the whole remainder of the term ( Gentle v Faulkner). Accordingly, granting someone exclusive possession without effecting a legal assignment of the full term does not offend the covenant. In short, exclusive possession alone, absent such an assignment, will not amount to breach. See Commentary: Covenants against assignment or parting with possession: Hill and Redman's Law of Landlord and Tenant [1]......

On dissolution of a company When a company is dissolved, all freehold and leasehold assets, together with rights belonging to, or held on trust for, the company immediately beforehand, are regarded as bona vacantia and pass to the Crown (or to the relevant Duchy). This captures leasehold interests, but excludes property the company holds on trust for someone else. See Practice Note: Bona vacantia and company property. The Crown has no duty to manage, dispose of, or deal with assets that vest in it as bona vacantia in any particular manner......

Any qualifying tenant of a long leasehold flat may serve a notice requiring the landlord to grant a fresh lease adding 90 years to the existing term, with a peppercorn ground rent. The notice must be given to the appropriate competent landlord, ie the landlord with authority to confer the extended term. The notice is served pursuant to section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) and must clearly set out the premium the tenant proposes to pay in order to obtain the lease extension by way of the new grant of the lease......

Can the tenant claim its costs from the landlord? There is no general statutory right for a tenant to recover its costs from the landlord. Any ability to do so would depend on the wording of the lease, which must be reviewed to see whether it grants such an entitlement in this scenario. In practice, it would be unusual for a lease to contain a provision of this nature. It is also unclear on the information given in this Q& A whether the inspection was carried out solely by the tenant to determine if a breach had occurred, or whether it was arranged by the landlord, with the tenant required to attend to provide access to an unmanned site......

Successive legal reforms have steadily tightened the framework governing deposit protection over recent years. Following 2012, a landlord had 30 days to safeguard the deposit and supply the relevant prescribed information to the tenant. Non-compliance with these duties penalises the landlord in two distinct ways under law......

It is assumed that the landlord has instituted proceedings to forfeit the lease due to non-payment of rent. Given the claim has succeeded, it is further assumed the lease contained a clause authorising re-entry upon non-payment of rent, and that either the arrears were duly demanded or section 210 of the Common Law Procedure Act 1852 applies, with at least six months’ rent outstanding and insufficient distress available on the premises to satisfy the arrears, in which situation any demand is dispensed with. There is likewise no requirement to serve a notice under section 146 of the Law of Property Act 1925 where the breach relied upon is non-payment of rent. In matters of forfeiture for non-payment of rent, as in this instance, relief is exercised under the equitable jurisdiction of the courts, and any relief is considered, granted or refused strictly within that...

Peaceable re-entry This enquiry considers how a landlord may carry out a peaceable re-entry. The discussion is confined to a specific point, on the footing that a notice pursuant to section 146 of the Law of Property Act 1925 has already been served. It is further taken as read that the right to forfeit has accrued, has not been waived, and that the lease reserves a right of re-entry. Steps have been taken to confirm the premises are empty. That precaution matters because it is a criminal offence for A to use violence to gain entry to premises when B is within, objects to the entry, and A is aware of that fact (section 6 of the Criminal Law Act 1977 ( CLA 1977)). The narrow point presented is what amounts to peaceable re-entry. Peaceable re-entry is, perhaps, something of a...

In such situations, if a tenant declines to grant the landlord entry to examine the premises, this amounts to a breach of the lease terms, as the lease contains a provision giving the landlord the right to enter the property for inspection, following a stated period of notice thereafter......

It is assumed for the purposes of this Q& A that the refusal of consent concerns an alienation application (ie a proposal to assign/underlet/charge/part with possession). If, however, the matter instead relates to alterations, the position will need to be reconsidered, as distinct case law and statutory provisions govern that topic. As a useful starting point for that subject, see: Alterations and improvements for property disputes lawyers—overview. Unreasonable withholding of consent As set out in Practice Note: Landlord's consent to assign or underlet, the High Court in Ansa Logistics v Towerbeg confirmed that consent to assign/underlet cannot normally be withheld merely because a landlord is able to point to a breach of covenant. The key question is whether the particular breach is of such a character or seriousness as to warrant the refusal of consent......

Under common law, the general rule is that forfeiting a headlease brings to an end any interests that flow from it, including subordinate derivative arrangements like a sub-lease......

Common practice is to use a retrospective licence to alter after works have already been fully completed...