Legal Q&A

Position where the contract for sale is silent in relation to environmental liabilities If a land sale contract says nothing about environmental liabilities, allocation of responsibility turns on various factors, including the nature of the liability, who caused or knowingly permitted the issue, and when it took place, depending on the circumstances in which it occurred. By way of illustration, there are several liability regimes for land contamination, including liability for contaminated land under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) (see Practice Note: Land contamination—potential liabilities). Under EPA 1990, Part IIA, liability is both strict and retrospective. Class A persons, namely those who cause or knowingly permit the contamination, will be liable......

In many developments, the freeholder or a right to manage ( RTM) company established by the leaseholders accumulates a reserve fund from amounts the leaseholders pay via their service charges. This fund is intended to cushion substantial expenditure—such as repair works required under the leases—by spreading the contributions over several years......

Section 33 of the Local Government ( Miscellaneous Provisions) Act 1982 ( LG( MP) A 1982) This provision addresses how local authorities can enforce certain land-related covenants. It applies where a principal council and another person are parties to an instrument under seal that is executed for specific purposes relating to land in which that person has an interest. The section is engaged where the instrument is: executed to secure the carrying out of works on land within the council’s area in which the other party holds an interest; or executed to regulate the use of, or is otherwise connected with, land either within or outside the council’s area in which that party has an interest; and only where the instrument is neither executed to facilitate, nor otherwise connected with, the development of the relevant land. LG( MP) A 1982, s 33(2) sets out...

The question refers to the Land Registration Act 2002 (the Act), which mandates registration for any lease exceeding seven years. Absent registration, s 7(1) states the lease ‘becomes void as regards the ... grant .. of a legal estate’, while s 7(2)(b) states that ‘the grant … takes effect as a contract made for valuable consideration to grant … the legal estate concerned.’ The result is that the interest subsists only in equity. Consequently, non-registration affects not only the mutual rights of the contracting parties, but also whether a third party will be bound. By contrast, an option does not require registration in order to operate between the parties. In effect, the legal title does not arise, but the arrangement survives as an equitable contractual right, binding the parties and potentially affecting third-party obligations......

No estate will be placed on the register until any existing caution has been properly resolved. Should an application to register be lodged, HM Land Registry ( HMLR) will alert the cautioner and advise them of their entitlement to oppose it. The cautioner may then submit an objection within the stipulated timeframe. As provided by the Land Registration Rules 2003, SI 2003/1417, r 53, that period usually expires at 12 noon on the 15th business day following the issue date of the Registrar’s notice, unless a different arrangement is agreed. Nevertheless, the cautioner may ask the Registrar, with reasons, to allow extra time. Any such request must be lodged before 12 noon on the 15th business day after the Registrar’s notice is issued......

Condition C Where the buyer is a private person, one requirement of the increased rates ( Condition C) is that, by the close of the completion day for their transaction, they hold a ‘major interest’ in a residence other than the one acquired. In some situations, this test is satisfied despite the buyer not holding any such interest at all......

Meaning of ‘covenant’ Definition and construction of covenant: Halsbury’s Laws of England [448] states that a covenant is a promise contained in a deed, binding the parties, or any one of them, to do, or to refrain from doing, a particular act. The term may nonetheless be read so as to include provisions in an agreement under hand where, absent such construction, the wording would be deprived of effect; for example, where a document refers to the “covenants” of a lease that is not executed by deed......

When two or more people jointly own land together, it is held on a trust of land. Under a trust of land, the legal and equitable estates are distinct and separate. The legal title must be held by the co-owners as joint tenants. The beneficial interest may, however, be held by the co-owners beneficially either as: joint tenants tenants in common If they are joint tenants in equity, each holds an indivisible, concurrent interest in it: every owner is entitled to the whole, not an identifiable fraction. The rule of survivorship operates so that, on the death of a joint tenant, the deceased’s interest passes automatically to the other(s). Where the equitable interest is taken as tenants in common, shares can be unequal, and a deceased owner’s portion does not pass to the survivor but instead forms part of the deceased’s estate. A tenancy in common may...

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......

Question 1 This reply proceeds on the basis that the agreement for lease amounts to a ‘new tenancy’ for the purposes of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). Stated broadly, the combined operation of LT( C) A 1995, ss 2 and 3 is that the benefit and the burden of all ‘landlord covenants’ and ‘tenant covenants’ of a ‘tenancy’ (as those expressions are given in LT( C) A 1995, s 28) pass with the reversion and, correspondingly, the term, unless LT( C) A 1995 provides otherwise......

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...

Service occupancy In England, an employee who lives in property owned by their employer to carry out their duties, and who has exclusive possession, occupies either as a tenant or as a licensee under a service occupancy (also known as tied accommodation). The distinction is significant because, under a service occupancy, the right to terminate arises when the employment ends, whereas a tenancy may benefit from security of tenure. A service occupancy is a form of licence that arises where: it is an express term of the employee’s contract of employment that they reside in particular accommodation from which they can better perform their duties ( Glasgow Corporation v Johnstone); or if there is no such express term, one can be implied on the basis that it is essential, rather than merely conducive, that the employee lives in specified accommodation for the better...

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...

Where a long residential lease is extended under section 56 of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) and the freehold is subject to a Form N restriction in respect of a charge to the freeholder’s lenders, will the HM Land Registry require lender consent to be submitted in order for the lease extension to be registered notwithstanding that the lease extension is pursuant to statute? A restriction entered on the register indicates that the proprietor’s power to deal with the land is constrained in some manner. Its practical effect is either to bar registration of a disposition, or to oblige the applicant to satisfy specified requirements before registration can proceed, for example by producing evidence of consent from the person entitled to the benefit of the restriction. A restriction may apply to every...

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...

If the landlord and tenant cannot agree the terms of a renewal lease, either party may then apply to the court so that the court can determine those terms under section 24(1) of the Landlord and Tenant Act 1954 ( LTA 1954)......