Legal Q&A

For the purposes of this Q& A, it is assumed the roof is not demised to the tenant and that the tenancy is in writing. The respective obligations of landlord and tenant for roof repairs will be dictated by the lease terms. Repair Leases typically place responsibility on the landlord to repair retained parts. In the commercial context, absent an express covenant, the landlord gives no assurance that the premises are, or will remain, physically suitable for the intended use, and is not obliged to undertake repairs except those required by common law or statute. Neither of these imposes particular fitness obligations on a landlord of business premises towards a tenant simply by reason of the landlord and tenant relationship......

A tenant’s obligations A tenant is under an implied duty to use the rented premises in a tenant-like manner. In Warren v Keen, the Court of Appeal (per Denning LJ) described this as taking proper care of the home and doing the small tasks a reasonable tenant would attend to. Frequently, tenancy agreements include express terms about how the property is to be used and any duties to keep it in good repair; these express provisions supersede the implied obligation. In addition, a tenant owes a tortious duty under the doctrine of waste, meaning they must not do, or fail to do, anything that brings about a permanent alteration to the property’s nature. Removing fixtures Allowing the property to fall into decay A landlord’s remedy once the tenancy has been determined Where a tenant has failed to meet their repairing obligations, the landlord is entitled to claim damages even after the...

It turns on the presence of a fair wear and tear exclusion in the lease and, if present, the way it is interpreted and applied. In principle, a carve-out for damage arising from fair wear and tear means that the tenant is not responsible for loss resulting from normal use of the premises and the ordinary action of natural elements......

Section 21 of the Landlord and Tenant Act 1985 ( LTA 1985) Under section 21 of the Landlord and Tenant Act 1985 ( LTA 1985), a residential tenant may require their landlord to furnish a summary of costs relating to service charges for the last accounting year; if accounts are not kept by accounting years, the previous 12 months. The landlord is obliged to comply with the tenant's request within one month, in any event, or, if later, within six months of the end of the relevant 12‑month accounting period......

Under the Housing Act 1985 ( HA 1985), tenants and leaseholders may make improvements to their homes, provided they secure the landlord’s consent in advance of commencing any repairs, and that they observe and comply with certain specified applicable relevant conditions. The Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) entitles secure tenants of local authorities to seek compensation, at the close of their tenancy, for improvements they have lawfully undertaken and completed. Housing Corporation Circular HC33/94 widened the LRHUDA 1993 scheme to include tenants of registered social landlords, for example, housing association tenants, bringing them within scope......

K/ S Victoria Street v House of Fraser In K/ S Victoria Street v House of Fraser, the Court of Appeal held that a tenant’s surety may neither promise nor provide a guarantee for the tenant’s assignee, save by securing the tenant’s liabilities under an authorised guarantee agreement on assignment......

The Consumer Rights Act 2015 ( CRA 2015) The Consumer Rights Act 2015 ( CRA 2015) revised and brought together consumer protection laws with effect from 1 October 2015. Primarily, it applies to consumer agreements for providing goods, services and digital content, and overhauls the rules on unfair terms in consumer contracts. It is generally considered that a guarantor of an assured shorthold tenancy ( AST) is unlikely to qualify as a consumer of goods, services or digital content. Accordingly, any safeguard available under CRA 2015 would arise only through the unfair terms provisions in such circumstances, if applicable......

Our Q& A centres on residential leases. In the vast majority of leases for flats, there is a term permitting the landlord to re-enter and recover possession where a covenant has been breached; such provisions are the norm, particularly in the context of long leases (those exceeding 21 years). However, the indication in the question that the tenant is content for the lease to be forfeited suggests the situation concerns a short lease, namely an assured shorthold tenancy ( AST). It would be highly unusual for a long-lease holder who has paid a premium comparable to purchasing the freehold to be willing to forfeit that interest. Accordingly, this response proceeds on the footing that the tenant is an AST holder......

The tenant’s status It is common, when a commercial lease comes to an end, for the occupier to stay on without putting a fresh contract in place. Where Part II of the Landlord and Tenant Act 1954 ( LTA 1954) has been properly contracted out, that continued occupation is, at the outset, either as a tenant at will or as a tenant at sufferance. Once the landlord authorises the occupation, it can no longer amount to a tenancy at sufferance. By way of illustration, serving a notice stating that the occupation is on a tenant-at-will basis clearly constitutes consent. A tenancy at will is inherently fragile and precarious. It can be determined without any advance notice; a simple demand for possession is enough, and nothing further is required to end it by the landlord......

Legal co-owners are equitable tenants in common—conversion to equitable joint tenancy Legal co-owners holding property for themselves as equitable tenants in common may, where they agree, opt to hold as equitable joint tenants by executing a fresh declaration of trust. Please consult Practice Note: Residential property—transfers of equity and dealings with equitable interests in residential conveyancing, paying particular attention to the main section Specific scenarios for guidance on that topic within that resource. You might also find these resources helpful: Trusts of land for property lawyers— Overview Trusts of land—overview ......

The Electronic Communications Code The Electronic Communications Code (the ‘ Code’), found in sections 106–119 and Schedule 3A Pt 1 to the Communications Act 2003, enables Ofcom-authorised operators to obtain rights over land for a range of purposes (see Code para 3). Code rights can be conferred by agreement between a land occupier and an operator, and, in practice, telecoms providers ordinarily seek to secure consensual terms at the outset. If agreement cannot be reached, the Upper Tribunal ( UT) has authority to confer Code rights without the occupier’s consent. The process is initiated by the operator serving a notice under paragraph 20 of the Code......

This Q& A relates to commercial property References to services are taken to mean the standard primary utilities, namely drainage and water, electricity, gas and oil. As a matter of good practice, arrange for meter readings to be taken for each applicable supply on completion. Where there is any worry that the seller might default on utility charges run up before completion, the contract should contain a clear obligation requiring the seller to indemnify the buyer for those liabilities specifically......

The Energy Performance of Buildings ( England and Wales) Regulations 2012 ( EPC Regulations), SI 2012/3118 The Energy Performance of Buildings ( England and Wales) Regulations 2012 ( EPC Regulations), SI 2012/3118 have applied since 9 January 2013. They place specific duties on owners of buildings they plan to sell or let to third parties. They implement Directive 2010/31/ EU of the European Parliament and of the Council dated 19 May 2010 on the energy performance of buildings. It is useful first to consider what is meant by a building under the EPC Regulations, SI 2012/3118. Under reg 2(1), a building is a roofed structure with walls where energy is used to regulate the indoor climate, and this will generally also cover a building unit within that building. The same regulation provides that a building unit is a section, storey or apartment within a...

One must carefully take into account a bankrupt’s duties owed to the trustee in bankruptcy ( TIB)...

Contributing tithes for the maintenance of a parish is a very long-standing practice, traceable well back to the Saxon era. In 1836, the Tithe Act 1836 indeed replaced the obligation to pay tithes with a rentcharge over land, recalculated annually by reference to the price of corn. In substance, it functioned as a locally levied, index-linked charge. Later enactments continued to control tithe payments until, in 1936, the Tithe Act 1936 ( TA 1936) abolished rentcharges arising from tithes. Compensation was then made payable to reflect that change. Accordingly, the concise conclusion is that a tithe rentcharge is not legally enforceable......

Prior to the Sunday Trading Act 1994 ( STA 1994) Before STA 1994, trading on Sundays was unlawful, save in certain excepted circumstances, pursuant to the Shops Act 1950, which had governed such activity. That Act introduced lawful Sunday trading, but limited large premises (over 3,000 square feet, or 280 square metres) to opening for a maximum of six hours strictly between 10 am and 6 pm during that specified period. STA 1994 enables Sunday trading prospectively; however, it contains no term revoking or amending any pre-existing covenant in a lease that prohibits trading on a Sunday, and such clauses therefore continue to bind......

Section 1(1)(a) of the Housing Act 1988 ( HA 1988) Under this provision in the Act, only an individual can be the tenant of an assured tenancy. Consequently, a company letting cannot qualify as an assured shorthold tenancy ( AST). The HA 1988 also specifies categories of tenancy that are excluded from being ASTs, including business tenancies under the Act. As a result, the arrangement will then fall either as a common law tenancy—outside the HA 1988 and subject to ordinary contractual principles—or, where the relevant requirements are satisfied, as a business tenancy......

Where a tenant makes an encroachment onto neighbouring land owned by a third party adjacent to the demised land, the appropriation is treated as accruing to the benefit of the tenant’s landlord. In Tower Hamlets LBC v Barrett [2006] P& CR 132 (not reported by Lexis Nexis®), Neuberger LJ observed at para [26] that the doctrine is clearly articulated in these terms: in every case—whether the enclosed land is part of the waste, belongs to the landlord, or is owned by someone else—the presumption is that the tenant enclosed it for the landlord’s advantage, unless the tenant has carried out some act disclaiming the landlord’s title......

Q& A In this Q& A, the tenant is termed the immediate tenant, while the intended subtenant is called the proposed tenant. Any subtenants of the proposed tenant are described as potential subtenants. As the exact text of the lease covenants is unknown to us, we proceed on the basis that the prohibition covenant mirrors that in Nemcova v Fairfield Rents, under which the lease obliged occupants not to use the premises for any unlawful or immoral purpose, and ‘for any purpose whatsoever other than as a private residence’. We also proceed on the basis that the alienation clause includes a requirement for the immediate tenant to adhere to the provisions set out in the superior lease in full......

Broadly, varying a (stamp duty) lease constitutes a stamp duty land tax ( SDLT) transaction. This is because the transaction’s effective date falls after the SDLT start date of 1 December 2003, and it is not undertaken under a contract concluded before 10 July 2003, the date on which the Finance Bill 2003 received Royal Assent. The fact that the lease being amended was granted prior to the implementation date does not alter this position......