Legal Q&A

This Q& A relates to whether the landlord can serve a schedule of dilapidations in respect of partitioning. It considers if the presence of partitioning permits the landlord to issue a schedule of dilapidations. It also addresses whether the existence of partitions could adversely affect the tenant’s ability to determine the lease by exercising a break; that latter point is not dealt with in this reply. For the purposes of this Q& A, it is assumed that the tenant, with the landlord’s authorisation, installed the partitions during the term of the earlier lease (the Original Lease), and that, when negotiating the new contracted out lease (the Current Lease), the partitions were not raised. In evaluating the tenant’s responsibilities to remove the partitions, this answer is necessarily constrained without sight of the leases and any relevant licences granted in connection with the works. The...

General principles Once a fixed-term assured shorthold tenancy ( AST) ends, a periodic tenancy arises by operation of section 5 of the Housing Act 1988 ( HA 1988). Under s 5(3)(d) HA 1988, the duration of that periodic tenancy is set by reference to the interval for which rent was last due under the preceding fixed-term tenancy itself as specified by that statute......

Commercial leases commonly bar tenants from carrying out alterations or enhancements to the let premises unless the landlord agrees. In addition, tenants are typically required, on expiry of the term, to hand back the property in the condition it was in at the outset. As a result, if consent for alterations is given, an obligation to reinstate will generally be imposed as a pre-condition. The Landlord and Tenant Act 1927 ( LTA 1927) sets out a number of provisions concerning improvements......

The answer on the contractual provisions in the tenancy agreement. On the face of it, the tenant must secure consent before commencing any works. Where that applies, the tenant cannot compel the landlord to grant consent after the fact for alterations, save where the landlord chooses to agree. Should the landlord decide to issue consent retrospectively for any alterations, the landlord will set out the conditions and requirements on which such consent is given. These may include timing, scope, reinstatement, and any associated costs......

Electronic Communications Code (the Code) It is taken that a headlease has been forfeited, with any sub-leases granted under it likewise brought to an end. The Electronic Communications Code (the Code) referenced is the version produced by the Law Commission in 2013. As the Q& A observes, the operator’s lease was terminated by forfeiture and, thereafter, it is assumed the freeholder required the equipment to be removed, so a paragraph 21 notice had to be served. Paragraph 21 of the Code states that, where no agreement is in place or it is shortly to come to an end, the freeholder requires an order authorising removal of the telecommunications apparatus located on the roof of the freeholder’s property......

Electricity Act 1989 Section 10(1) of the Electricity Act 1989 ( EA 1989) sets out two routes for electricity supply companies (being licence holders under the EA 1989) to secure rights over land. One route is compulsory purchase of the requisite land or interests under EA 1989, Sch 3. The alternative is obtaining a ‘necessary wayleave’, in accordance with EA 1989, Sch 4. For additional guidance, see Practice Note: Statutory wayleaves and rights of access. Compulsory acquisition Schedule 3 draws in, subject to important modifications, provisions contained in Part I of the Compulsory Purchase Act 1965......

It is quite usual, in many cases, for an intermediary landlord to sit between the occupational long-leasehold tenants of a block of flats and the freeholder. The term of the intermediate lease is longer, although often only a little longer, than the duration of the occupational long leases (flat leases) for the individual flats. The typical set-up is a freeholder at the top, then a head tenant, frequently a management company, for the whole block, and beneath that the individual flat leases......

This query asks whether the owner of the land (the servient owner) on which a septic tank currently sits, and across which a neighbour has acquired prescriptive drainage rights, is entitled to replace that tank with a modern treatment unit, and whether the neighbour benefiting from those rights (the dominant owner) can be obliged to contribute to the costs of installing and maintaining the replacement apparatus. Can the servient owner replace the tank? On the basis that the dominant owner holds a prescriptive right to drain into the septic tank (as stated), the initial issue is the servient owner’s entitlement to substitute the existing septic tank with a contemporary equivalent. Provided the works are organised so that the neighbour’s drainage rights are not hindered to an actionable extent, both during installation and thereafter, there is, in principle, no reason to object to the servient owner...

Section 57(1) of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) Provides that the terms of any new lease must be conferred in line with LRHUDA 1993, s 56(1) as regards rent (a peppercorn) and the term (90 years after the existing lease’s term date), and, save for appropriate specified amendments, should otherwise reflect the provisions of the current lease. In addition, LRHUDA 1993, s 57(6) confirms that LRHUDA 1993, s 57(1) does not prevent the landlord and the tenant, in defined specified circumstances, from settling terms for the new lease which are not in accordance with the existing lease, in those specified circumstances. This applies in certain specified cases only......

Part II of the Landlord and Tenant Act 1954 ( LTA 1954) Part II of the Landlord and Tenant Act 1954 ( LTA 1954) affords security of tenure to business tenancies that have not opted out of its terms. In practical terms, a tenancy does not end on the contractual expiry date by effluxion of time; rather, it continues as a statutory tenancy. Either the landlord or the tenant may apply to the court seeking the grant of a new tenancy. By virtue of LTA 1954, s 25, the landlord may give notice to the tenant to terminate the tenancy. If the landlord wishes to oppose the grant of a new tenancy, they must identify one of the grounds set out in LTA 1954, s 30(1). If the landlord does not oppose the grant of a new lease, the landlord must set out the...

The Housing Act 2004 ( HA 2004) The Housing Act 2004 ( HA 2004) places a duty on landlords to manage deposits taken for assured shorthold tenancies in line with schemes authorised by the Act ( HA 2004, s 213(1)). There are two approved models: a custodial scheme and an insurance scheme ( HA 2004, s 212(8); HA 2004, Sch 10, paras 1(2), 4). Under the custodial option, the deposit is lodged in an account operated by a scheme administrator. Under the insurance option, the landlord retains the deposit but gives an undertaking to the administrator to return the money; the administrator, in turn, maintains insurance to meet repayment if the landlord fails to comply. This Q& A does not explore the sanctions for breach of these obligations ( HA 2004, s 214), nor the restriction on the landlord serving a section 21 notice...

The general rule The general rule is that when a buyer of a freehold interest enters into covenants with the seller, although the burden of restrictive obligations will in many instances bind a successor in title, positive duties requiring the covenantor to act do not run when the freehold is conveyed. A rentcharge operates as a device by which a monetary duty can pass to the successor of the initial buyer. There is no issue, as a matter of contractual privity, in imposing on the purchaser a contractual obligation to pay the seller for the supply of services relating to the land; however, matters become more intricate once the seller transfers the freehold estate to a third party. The rentcharge nonetheless entitles its holder to demand regular periodic payments of money from the owner of the freehold estate. It is not a...

Right to rent scheme The duties imposed by the right to rent scheme extend to all relevant lettings described in Practice Note: Residential tenancies—a tenant’s right to rent under the Immigration Act 2014, except where a letting is an excluded tenancy set out in Schedule 3 to the Immigration Act 2014 ( IA 2014), also cited in that Practice Note. Be aware that social housing—as defined in IA 2014, Sch 3—is outside scope entirely......

A buyer for value of land burdened by a legal or equitable rentcharge in favour of a charity will take subject to that rentcharge, unless: the rentcharge is registrable as a land charge and is void against him for want of registration (see sections 2 and 4 of the Land Charges Act 1972; section 24 of the Law of Property Act 1969; section 2(1)(i) of the Law of Property Act 1925 ( LPA 1925)); the sale is made in exercise of powers under the Settled Land Act 1925 ( SLA 1925) and the rentcharge is capable of being overreached on such a sale (see SLA 1925, s 72; LPA 1925, s 2(1)(i)); or for an equitable rentcharge, the purchaser had no notice of it ( Re Alms Corn Charity, Charity Comrs v Bode). Also note that, depending on the date of the rentcharge, the...

Part I of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) Part I of the LRHUDA 1993 provides qualifying tenants of flats with two principal rights: a collective right to acquire the freehold of the block (collective enfranchisement) where the flats are in premises that satisfy specified conditions an individual right to a new lease that runs for 90 years after the existing lease comes to an end The right to collective enfranchisement only arises if a number of requirements are met. These relate to the nature of the building, the terms of the leases and the status of the tenants......

Sold as seen ‘ Sold as seen’ lacks a precise statutory definition, yet commonly signifies that the property is transferred exactly as it stands at the moment of sale—i.e. no warranties or assurances are provided about its state, condition, or faults or defects. When used in relation to chattels, it typically conveys that no assurances or guarantees are offered concerning those particular chattels or their condition......

A charity may hold legal title to land or property in its own name only if it is a charitable incorporated organisation or a charitable company. Land Registry Guidance Practical Guidance 14: Charities explains that the term “trust corporation” includes: the Public Trustee (who is not permitted to accept trusts for charitable purposes); a corporation appointed by the court, in any particular instance, to act as trustee; and a corporation entitled, under rules made pursuant to section 4(3) of the Public Trustee Act 1906, to act as a custodian trustee. See section 205(1)(xxix) of the Law of Property Act 1925 and section 17(1)(xxx) of the Settled Land Act 1925, and also section 3 of the Law of Property ( Amendment) Act 1926......

Joint property ownership in England and Wales When property is owned jointly in England and Wales, it is held in two ways. The legal title shows the names under which the property is registered. Those legal owners hold it on trust for the beneficial owners (also called equitable owners). Beneficial owners are often the same as the legal owners, but need not be. Legal title is always held as joint tenants. Accordingly, the registered owners hold the property ‘per muy et per tout’: each owns the entirety rather than fixed shares......

What is pre-planning restrictive covenant insurance? Restrictive covenant insurance safeguards people holding an interest in land that is burdened or encumbered by a restrictive covenant. It generally also covers losses including: damages awarded against the insured expenses to modify or demolish a building or other structures to comply with a covenant abortive works costs legal costs This cover can be arranged before planning consent has been obtained for a development where the intended development site is burdened by restrictive covenants. That includes situations where planning permission has not yet been obtained. When is it appropriate to take out a pre-planning restrictive covenant insurance policy? Clearly, if a restrictive covenant looks likely to affect the proposed development, all efforts should be made to resolve matters at the earliest opportunity. Every effort should be made to iron out issues as early as...

This response addresses a situation where a party asserts the benefit, as overriding interests, of a five-year business lease and of chancel repair liability. Both arose before the land was registered yet were not recorded against the title, and the question is whether they could constitute overriding interests. Chancel repair liability Chancel repair liability has historically been difficult to pinpoint or verify because there is no single central register that sets out all such liabilities (see Practice Note: Chancel repair liability)......