Legal Q&A

This Q& A considers a tenant who is in a tenancy in common with another tenant, who petitions for bankruptcy after exchange and before the completion of a sale of the property that the two tenants own. It examines the first co-owner’s exposure to the purchaser and what remedies he or she may pursue against the other co-tenant if the purchaser serves a notice to complete. As to contractual responsibility, this turns on the contract’s terms. By way of illustration, if the sellers have joint and several obligations, the innocent party is nonetheless answerable to the purchasers. For further details, see Practice Note: Joint, several, and joint and several liability......

The Agricultural Tenancies Act 1995 ( ATA 1995) The Agricultural Tenancies Act 1995 ( ATA 1995) brought in Farm Business Tenancies, covering lettings of agricultural land or buildings used for a farm business. A letting made on or after 1 September 1995 qualifies where part of the demised land is farmed for the duration of the letting and either the parties have exchanged notices stating their intention that it will remain a Farm Business Tenancy throughout, or, if no notices were exchanged, the business undertaken is chiefly agricultural. Arrangements agreed before 1 September 1995 are instead governed by the Agricultural Holdings Act 1986 ( AHA 1986)......

At present, we know of no authority on this particular point...

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......

Trespasser or oral tenancy Given the circumstances and the length of time she has been there, it is improbable that the sister in law is occupying as either: a trespasser (albeit a tolerated one); or under a lease, since a lease may only be created orally where: the term does not exceed three years, it is not of an incorporeal hereditament, it takes effect in possession, and it is at the best rent reasonably obtainable without taking a fine. See the Law of Property Act 1925, ss 52 and 54, and our Q& A. A landlord let a property on an assured shorthold tenancy starting 4 May 2015 for a fixed term of six...

Lease variations—surrender and re-grant issues Granting a lease establishes a legal arrangement over a defined parcel of land for a set period. As a rule, you cannot enlarge either the land covered by the lease or the duration of its term without first surrendering the existing lease and granting a replacement. Should the parties try to implement such a change, the law will treat their bargain as a surrender and re-grant, regardless of what they intended. In that event, the extra period becomes a fresh term commencing on the date of the surrender and re-grant. If the effect is not avoided (and there are methods), the fallout from a surrender and re-grant can be substantial for landlord or tenant; see Practice Note: Lease variations—surrender and re-grant issues......

This Q& A considers a landlord’s ability to deal with their premises following service of a notice under section 13 of the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). Once a section 13 notice is served, a statutory process begins that enables flat tenants to act together to buy the freehold of their building. The rights created by that notice ought to be safeguarded by entering an agreed or unilateral notice on the freehold title, or, where the landlord’s title is unregistered, by registering a class C(iv) land charge......

A landlord has 30 days from receiving a rent deposit to satisfy, in full, the Tenancy Deposit Scheme ( TDS) initial duties and obligations. These require supplying the tenant—and any individual who pays the deposit for them (i.e. the ‘relevant person’)—with certain prescribed particulars, including information 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 our Practice Note: Tenancy deposit schemes). Non-compliance may have potential consequences. This Q& A proceeds on the basis that the tenancy is in England, and that the rent deposit itself has been properly handled in line with the TDS requirements; accordingly, we have not set out those requirements here in this respect for the avoidance of any doubt......

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......

The continuing enforceability of the right of access After the A Land is first registered, whether a right of access remains enforceable hinges on the date when the title to the A Land was first entered on the register. If that initial registration occurred before 13 October 2003, the Land Registration Act 1925, ss 5 and 9 ( LRA 1925), provided that the first proprietor of the A Land took the estate subject to any overriding interests that already affected the A Land......

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......

Notice requirements in respect of excavations Section 6 of the Party Wall etc. Act 1996 ( PWA 1996) sets out the notice obligations for excavations, and in particular covers works where digging is undertaken within a distance between three and six metres of an adjoining property. Addressing ‘special foundations’ first, PWA 1996, s 20 explains these as foundations that employ an arrangement of beams or rods for the purpose of spreading any load. Where proposed foundations fall within that description, the adjoining owner’s written agreement must be secured in advance. Clearly, this is an extremely technical area, and a suitably detailed report ought to be obtained in order to consider whether, in the circumstances of this scenario, the foundations can properly be treated as special foundations. Turning to whether section 6 will extend to the construction of foundations which encroach upon the...

An initial consideration at the outset is to ask why B wants a legal charge. Is it intended to ensure the works are completed? To enable B to do the works in default? Or is it about finance, ie does B seek security so that, if A fails to do the work, B will obtain monies (eg by selling A’s land) to cover the cost of the works required accordingly?......

Part III of the Agricultural Holdings Act 1986 ( AHA 1986) Part III of the Agricultural Holdings Act 1986 ( AHA 1986) prescribes the rules for giving notice to quit the whole or part of an agricultural holding. A landlord’s notice to quit may set out the grounds relied upon, although supplying reasons is not obligatory......

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......

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......

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...

Is an EPC required on lease renewal for a domestic property? An Energy Performance Certificate ( EPC) assigns a dwelling an energy efficiency band from A (most efficient) to G (least efficient). The rating comes from a detailed calculation that considers multiple elements, including the property’s age and type, how it is built, and its insulation and heating systems. The Energy Performance of Buildings ( England and Wales) Regulations 2012 ( EPB Regs 2012), SI 2012/3118, reg 6, provide, subject to specified exemptions, that an EPC must be made available to a tenant when a building is let. This requirement took effect on 9 January 2013. Despite EPB Regs 2012, SI 2012/3118, reg 6, current Government guidance on Energy Performance Certificates for the marketing, sale and let of dwellings states that an EPC is not needed for a lease renewal or an extension. That said, where the...