Legal Q&A

Section 3 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Section 3 of the Landlord and Tenant ( Covenants) Act 1995 states that, for any tenancy to which the LT( C) A 1995 applies, every landlord and tenant covenant attaches to and is inherent in the entirety of the demised premises and their reversion, as well as in each and every part, and on an assignment of the whole or any part of the premises or of the reversion, those rights and obligations pass in line with the section, and will do so automatically on such assignment. This signifies that covenants are not, save for specified exceptions, personal as between the parties; rather, they relate to, and run with, the land......

An Energy Performance Certificate ( EPC) An EPC assesses how energy efficient a building is, scoring it from A to G, with A representing the greatest efficiency. It is illegal for a landlord to let a commercial property with an F or G efficiency rating unless a valid exemption is in place. A landlord must hold an EPC in these situations: when renting out or selling the premises; when a building that was under construction is completed; or when changing the number of areas intended for separate occupation and this includes providing heating, air conditioning or ventilation systems. An EPC is valid for ten years. Certain exemptions apply, including both short and long tenancies......

This Q& A proceeds on the basis that the query concerns a tenancy in England. Section 21 notice Within 30 days of receiving a rent deposit, the landlord must satisfy the initial obligations of the tenancy deposit scheme ( TDS) by supplying the tenant, and any person who pays the deposit for the tenant (i.e. the ‘relevant person’), with the prescribed details about the TDS, the deposit, and the assured shorthold tenancy ( AST) (see section 213(3)–(6) of the Housing Act 2004 ( HA 2004), as amended, and Practice Note: Tenancy deposit schemes). Non‑compliance may carry potential consequences indeed......

Form LTBT1 Form LTBT1 is prescribed by the Regulatory Reform ( Business Tenancies) ( England and Wales) Order 2003, SI 2003/3096 (the Order). Where the parties intend to contract out of, or exclude, sections 24–28 of the Landlord and Tenant Act 1954 ( LTA 1954), the Order stipulates that particular steps must be completed before any such agreement is concluded. Landlords frequently seek the flexibility of a contracted‑out lease, as it allows the tenancy to end on expiry of the term without the tenant acquiring a right to a new lease. Under the LTA 1954, the former position required court approval for a contracted‑out arrangement (the Pre‑2004 Procedure). The Order replaced that regime with a new process that obliges the landlord to serve a warning notice in, or in a form substantially similar to, that set out in SI 2003/3096. This notice must be given...

Under sections 101 and 103 of the Law of Property Act 1925 ( LPA 1925), a mortgagee in possession is empowered to dispose of the property, usually once possession has been obtained; however, the parties may by agreement contract out of this statutory power. When the power of sale is exercised, the mortgagor’s equitable right to redeem is brought to an end, and the mortgagee holds any surplus sale proceeds on trust for the mortgagor and other interested parties......

The working assumption is that the land concerned is residential freehold property in England or Wales, and that no tax avoidance is in point. SDLT treatment of the first 40% transaction As set out in Practice Note: Land transactions, chargeable interests and chargeable transactions, a land transaction with no chargeable consideration (for which see Practice Note: SDLT chargeable consideration) is outside the scope of SDLT, an exempt transaction......

Section 37 of the Law of Property Act 1925 ( LPA 1925) treats spouses as distinct individuals for property ownership. Consequently, the standard trust rules on co-ownership govern their interests, whether held as joint tenants or as tenants in common, in line with LPA 1925, section 36......

For this Q& A, we proceed on the basis that the easements are recorded on the title... Prescription Act 1832 The Prescription Act 1832 ( PA 1832) sets out a statutory route for acquiring easements by prescription, operating in parallel with common law prescription and the doctrine of lost modern grant. The statutory framework can be outlined as follows: Easements other than rights of light: continuous, uninterrupted enjoyment for 40 years establishes a claim that is indefeasible save by express consent. Enjoyment for 20 years creates a claim that cannot be defeated by showing the right could not have existed since 1180, though it may still be overcome by any other available defences......

If a property vendor makes an inaccurate statement of fact, and the purchaser relies on it when agreeing the contract, it could potentially be suitable to pursue a claim for misrepresentation......

We proceed on the basis that: the agreement for lease ( AFL) constitutes a new tenancy for the purposes of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Effect of personal landlord covenant Under LT( C) A 1995, s 28(1)(b), an AFL falls within the meaning of a ‘tenancy’. As a result, any landlord covenant that is expressed—by whatever wording—to be personal to the named landlord providing it will not bind that landlord’s successors in title ( LT( C) A 1995, s 3(6)). This can be especially important where the AFL places wide-ranging obligations on the original landlord, for example to construct or undertake major works to the premises......

Rights when assignee’s lease forfeited because of a former leaseholder’s breach An assignee’s personal exposure for breaches committed before a lease is assigned is restricted, and a tenant will generally be responsible only where the lease contains an express covenant dealing with those breaches and allocating liability. Without such an express term, the landlord has no covenant to pursue against the assignee for defaults that were fully committed prior to the assignment of the lease. Forfeiture, by contrast, is a proprietary remedy rather than a personal one under the lease. It can be exercised by a landlord against a tenant for breach of covenant under that lease. See Practice Note: .......

Is a tree a plant or a hedge? On conventional botanical understanding, a ‘tree’ is treated as a variety of plant; nevertheless, we have not identified any case law or alternative legal authority that conclusively determines whether a tree falls within the broader definition of plant. Even so, a hedge may consist of trees (see below). In short, while science leans that way, the legal position remains unsettled at present, for now, in practice......

Stop press : The Levelling up and Regeneration Act 2023 obtained Royal Assent on 26 October 2023. This content is presently under review to ensure consistency with the Act. The Community Infrastructure Levy ( CIL) originates in section 205 of the Planning Act 2008 ( PA 2008) and took effect in 2010. It permits local authorities to levy a charge on new developments within their area where a new dwelling is created or additional floor space of 100sqm or more is provided. The detailed provisions are contained in the Community Infrastructure Levy Regulations 2010 ( CILR 2010), SI 2010/948, made pursuant to PA 2008......

Easements—generally An easement is an intangible right enjoyed by the holder of a legal estate (dominant tenement) over land owned by another person (servient tenement), and it binds successors in title also. Easements are commonly positive, granting the dominant proprietor permission to go onto or use the servient land in some manner (e.g. a right of way). They may, however, be negative, as such restraining activities on the servient land and thereby conferring upon the dominant owner a right to receive something from that land (e.g. a right to light)......

When A and B make a covenant regulating the use of B’s freehold land (presently owned by B or to be conveyed to B) for the benefit of land kept or held by A, it is, as a contractual promise, immediately enforceable. If, however, either A or B disposes of the interest in their respective parcels, the covenant is enforceable only where the equitable rules governing the enforceability of freehold covenants are fulfilled. Where A, being the original covenantee, has transferred the interest in the benefitted land to C, C may enforce the covenant solely if it is demonstrable that the covenant benefits that land and that the benefit has passed by assignment. The latter element will, in most cases, arise automatically by virtue of section 78 of the Law of Property Act 1925 ( LPA 1925), as provided under that statute in...

Joint ownership and severance Whether the pair are married or merely cohabiting is not stated; what is clear is that the house is their home and that title is held jointly. It is possible that, on transfer, an express declaration of trust was included to the effect that they were to hold upon trust for themselves as beneficial joint tenants or, in the alternative, as tenants in common in agreed shares which need not be equal. If an express declaration of trust exists, it would be conclusive of the extent of their interests. Should it provide that they are to hold as beneficial joint tenants, that would mean neither owns a divided portion of the property; but if the joint tenancy were to be severed, they would, from that point, hold as tenants in common in equal shares. Section 36 of the Law of...

Adverse possession When a person has exercised factual control over land owned by someone else for a defined period, intends to possess it, and does so without the landowner’s consent, he may have grounds to seek to be registered formally as the owner of that land on the register as such owner. This situation is described as adverse possession (also labelled ‘squatter’s rights’) and, from 13 October 2003, has been regulated by the Land Registration Act 2002 ( LRA 2002). Before the LRA 2002 came into force, the doctrine operated under the common law, with the leading modern authority being the decision in J A Pye ( Oxford) Ltd v Graham......

A mortgage by demise A mortgage by demise is an uncommon variety of mortgage whereby the borrower demises the property to the lender as security for a loan of money. Its arrangement is comparable to a lease, but for an exceptionally long duration (typically 3000 years). The mortgage will contain provisions for redemption. In the ordinary course, upon settlement of the principal amount and the interest, the mortgage will determine and the demised term thereby comes to an end......

Tithes Tithes represent a tenth share of all produce—praedial, personal, and mixed—owed to God and, by extension, to the ministers of His church for their support and maintenance. They fall due annually on everything that, with husbandry, yields increase through the act of God, even if that increase is not realised in each year, the obligation nonetheless arising from such productive potential... Tithe rentcharges The difficulty of gathering tithe in kind, coupled with the variable income it produced, prompted early moves to compound tithes: voluntary arrangements termed ‘moduses’ or compositions real, and those established by local or general statutes referred to as ‘corn rents’ or tithe rentcharges. Then, in 1836, a formal process was set out for commuting all tithes into tithe rentcharges, whether achieved by agreement or enforced by compulsion; in practice, almost all tithes have subsequently been so commuted......

A periodic tenancy may qualify as a business tenancy for the purposes of the Landlord and Tenant Act 1954 ( LTA 1954), conferring security of tenure on tenants. This sets periodic tenancies apart from other arrangements, such as a tenancy at will, a service tenancy, or a short-term business tenancy within LTA 1954, s 43(3), which cannot obtain any protected tenancy status under LTA 1954......