Legal Q&A

Cases which distinguish leases from licences are very fact sensitive. The usual starting question is whether there is ‘exclusive possession’—the legal ability to keep all others off the land. This feature is the badge of a tenancy; in contrast, a licensee does not enjoy it. Where the parties’ arrangement is set down in a written agreement, the enquiry centres on the proper construction of that instrument, interpreted against its factual background. Do the terms, on their true meaning, confer exclusive possession? More precisely, if an agreement grants: (i) exclusive possession; (ii) for a term; and (iii) at a rent, then, absent a lodging set-up or special circumstances, it amounts to a tenancy: Street v Mountford. Alternatively, where nothing has been recorded in writing, whether exclusive possession has been conferred is determined by considering all the circumstances, including asking: what the parties would ordinarily have expected in the...

Mary Ashley of 15 Old Square Higher SDLT rates apply where an individual buys a major interest in a single dwelling if conditions A– D are met at day‑end: A — consideration of £40,000 or more B — not subject to a lease with over 21 years unexpired C — purchaser owns another £40,000+ dwelling not so leased D — does not replace the only or main residence Dwelling includes a building or part used, suitable or being built/adapted as one dwelling, its gardens, grounds and benefiting land, and off‑plan contracts. Mixed‑use is excluded; no apportionment. As this freehold includes residential and non‑residential parts, it is mixed‑use, so the 3% surcharge should not arise. Sean Randall of Blick Rothenberg Limited The 3% applies to “higher rates transactions” in FA 2003, Sch 4ZA, paras 3–7, each requiring the main...

Section 23 of the Land Registration Act 2002 ( LRA 2002) states that: The owner’s powers concerning a registered estate comprise: authority to carry out any disposition allowed by the general law for an interest of that nature, except a mortgage by demise or sub-demise; and authority to charge the estate at law to secure the payment of money. At first glance, these powers appear extremely broad; nevertheless, it is evident that they are qualified by a constraint relating to the ability to grant charges over the land......

The Landlord and Tenant Act 1987 ( LTA 1987) The Landlord and Tenant Act 1987 ( LTA 1987) grants tenants of residential flats in a building a right of first refusal to acquire the landlord’s interest when a sale is contemplated. The landlord must issue notices to the tenants, setting out the intention to dispose of that interest and allowing them time to consider a purchase at the offer price. During this period the landlord is barred from selling, and non-compliance is a criminal offence. If the tenants are not served with notice, they may compel the incoming landlord to transfer the property to them at the price paid......

You are right that a tenant is unable to make a valid section 26 request seeking a new lease when its tenancy was granted for a fixed term of one year or less, pursuant to section 26(1) of the Landlord and Tenant Act 1954 ( LTA 1954). This equally covers periodic tenancies......

Part II of the Landlord and Tenant Act 1954 ( LTA 1954) Part II of the LTA 1954 confers security of tenure on business tenants unless its requirements have been contracted out. As a result, a commercial lease does not lapse by effluxion of time; instead it continues as a statutory tenancy until it is brought to an end in accordance with the LTA 1954, or when the court grants a new lease on the application of either the landlord or the tenant, or when the lease is terminated by surrender or by forfeiture under the scheme set out therein in full......

Under the Capital Funding Guide issued by Homes England, where a development lies within a designated protected area ( DPA) and benefits from grant, the registered provider ( RP) granting a shared ownership lease must include one of two provisions: limit staircasing to a maximum of 80%; or if staircasing beyond 80% is permitted, require the leaseholder to sell their share back to the landlord (or a nominee that is also an RP) at market value when they wish to sell. In certain cases, a local authority can seek a waiver of these conditions from Homes England where the supply of shared ownership homes is no longer constrained. Notwithstanding guidance suggesting one of the above clauses is mandatory for every shared ownership lease in a DPA, our understanding is that the applicable regulations do not impose this where the site has not...

Under Part II of the Landlord and Tenant Act 1954 ( LTA 1954), security of tenure covers most business leases, save where the parties have ‘contracted out’ of those rights. Section 38A of the LTA 1954 permits landlord and tenant to agree that security of tenure will not apply. To make the agreement effective, the parties must comply with the contracting-out process specified in LTA 1954, s 38A(3) and Regulatory Reform ( Business Tenancies) ( England & Wales) Order 2003 ( RRO 2003), SI 2003/3096, Sch 2......

This Q& A proceeds on the basis that the protected tenancy falls under the Rent Act 1977 ( RA 1977). Rent Act tenancies are chiefly under RA 1977......

During the medieval period, the manor’s lord allowed local people to occupy and farm open land on the estate in return for payment (in cash or in kind, for example tithes and corn rents) or services (ie labour or military service). Moreover, the lord of the manor also kept certain rights over the land. Such manorial rights were annexed to the lordship (ie the title ‘lord of the manor’), rather than to the manor land. A full catalogue of these rights appeared in Schedule 12, paragraphs 5 and 6 of the Law of Property Act 1922 (now repealed). That list is, however, conveniently reproduced in HM Land Registry Practice Guide 66— Overriding interests losing automatic protection in 2013, within that guidance document for reference......

When land is subject to a charitable trust, any disposal must comply with Part 7 of the Charities Act 2011 ( CA 2011). Transactions involving charity land are governed by CA 2011, sections 117–123. The charity is required to show that the proposed disposal serves its best interests and that it is being carried out on the best terms that can reasonably be secured in full......

We take it that both buyer and seller are unconnected third parties, dealing at arm’s length for these purposes; the asset being conveyed is situated in England and Wales; and the effective date is the date of completion. Although the seller might have a charge secured over its interest in the property, that does not automatically mean the sale to the buyer is caught by that charge by itself. Whether it is depends on what the parties agree. As a rule, a transfer is not taken subject to an existing mortgage. The notes below consider a transfer that is subject to a mortgage, and one that is not. Transfer subject to seller’s existing mortgage Where a property is conveyed to a buyer subject to the seller’s subsisting mortgage, the purchaser assumes the seller’s liability......

15% rate of SDLT For guidance on the 15% SDLT rate, consult Practice Note: 15% rate of SDLT for high-value residential property transactions. You can also use the ‘ Related documents’ pod positioned on the right-hand side of this document, which offers links to additional reading and guidance on the 15% rate within Lexis®Library......

In responding to this Q& A, the following assumptions are made: the land is not a residential property the land is registered the period of possession occurred after October 2013 and the 'new rules' apply to it Definitions used for clarity: the owner is 'the registered proprietor' the third party is 'the squatter' For a squatter to pursue an adverse possession claim against the registered proprietor, the squatter must demonstrate, for the requisite period of ten years, that both of the following are satisfied: the claimant enjoyed uninterrupted factual possession of the land for that period ('factual possession'); and the claimant intended to possess the land throughout that period ('intention to possess') These elements must be established across the whole of that period. Factual Possession To establish factual possession, the squatter must have exercised a sufficient degree of exclusive physical control over the land. What amounts to sufficiency is...

This query addresses what is required for a notice to quit to be effective. In general, such notices are controlled by common law principles that have developed over time. There are, however, situations in which service is not permitted (for instance, where a residential tenancy benefits from the Housing Act 1985 ( HA 1985) or the Housing Act 1988 ( HA 1988)) and circumstances where a particular format is mandated (for example, where a business tenancy enjoys the protection of the Landlord and Tenant Act 1954 ( LTA 1954), the giving of a notice under LTA 1954, s 25 being comparable to a notice to quit, albeit with significant distinctions in important respects when compared)......

The higher rates of stamp duty land tax ( SDLT) These enhanced rates apply where an individual acquires a major interest in a single dwelling and, by the close of the purchase day, conditions A to D are satisfied: Condition A — the transaction’s chargeable consideration is £40,000 or more; Condition B — on the date of purchase, the dwelling is not held under a lease with more than 21 years left to run; Condition C — the purchaser already holds a major interest in another dwelling with a market value of £40,000 or above, which is also not subject to a lease exceeding 21 years......

An easement is a right enjoyed by one piece of land (the dominant tenement) over adjacent land (the servient tenement). There are numerous varieties of easement; rights of way are the best known, yet they cover rights to take water, and rights relating to storage, parking, access and the like. Easements are attached to the land and are registrable, which means they will bind later owners of the servient land and will continue to benefit the dominant land even following a change in ownership, making them proprietary rights, as opposed to a licence personal to a landowner from time to time......

Assured shorthold tenancies An Assured Shorthold Tenancy ( AST) is a form of assured tenancy that permits a landlord to rent out a dwelling, while still keeping the ability to recover possession of the property once the term finishes. This differs from regulated and other assured tenancies, where the occupier might have a right to remain in the home when the term ends. For further detail, see Practice Note: A summary of types of private residential tenancies, under the heading A summary of types of private residential tenancies— Assured shorthold tenancies. As to how an AST arises, the starting position is that any residential letting granted on or after 28 February 1997 will, by default, be an AST, unless the landlord has served a notice on the tenant confirming that the tenancy will not be an AST......