Legal Q&A

Where H died with a domicile outside England and Wales, the South African grant might be capable of being resealed in England and Wales so that H’s UK property can be dealt with without making a fresh application for a grant; see Practice Note: Resealing of foreign grants, for further reference. By contrast, if H was domiciled in England and Wales at death, an application for letters of administration will be required here, since the power to administer an estate in England and Wales rests on holding a grant of representation, accordingly. Anyone who, under the Non- Contentious Probate Rules 1987 ( NCPR 1987), SI 1987/2024, has priority to a grant may apply for a grant of letters of administration. The ranking of entitlement mirrors the order applicable on intestacy and is prescribed in NCPR 1987, SI 1987/2024, r 22......

This Q& A assumes that the lease was disclaimed by a liquidator for the insolvent tenant. On a disclaimer of the lease, the insolvent company's rights, interests and liabilities fall away; however, the disclaimer leaves untouched the rights or liabilities of any other person, save only so far as is necessary to release the company from liability (section 178(4) Insolvency Act 1986 ( IA 1986)). Consequently, where a mortgage is in place, the lease is treated as continuing to exist so as to give effect to, and protect, the mortgagee's rights in that scenario......

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......

On the life tenant’s death, an inheritance tax ( IHT) liability would arise pursuant to section 49 of the Inheritance Tax Act 1984 ( IHTA 1984), subject to any property that was eligible for relief at that time......

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......

Whether a covenant is infringed hinges on the facts and the precise wording of the lease covenant. Assigning underletting, parting with or sharing possession Assignment A promise 'not to assign' or 'not to assign or otherwise part with' the premises is breached only where there is a legal assignment of the whole remainder of the term ( Gentle v Faulkner). Accordingly, granting someone exclusive possession without effecting a legal assignment of the full term does not offend the covenant. In short, exclusive possession alone, absent such an assignment, will not amount to breach. See Commentary: Covenants against assignment or parting with possession: Hill and Redman's Law of Landlord and Tenant [1]......

On dissolution of a company When a company is dissolved, all freehold and leasehold assets, together with rights belonging to, or held on trust for, the company immediately beforehand, are regarded as bona vacantia and pass to the Crown (or to the relevant Duchy). This captures leasehold interests, but excludes property the company holds on trust for someone else. See Practice Note: Bona vacantia and company property. The Crown has no duty to manage, dispose of, or deal with assets that vest in it as bona vacantia in any particular manner......

Section 171B of the Town and Country Planning Act 1990 Under this provision, a failure to comply with a planning condition becomes immune from enforcement once ten years have elapsed from the date the breach first arose. Thereafter, the continuing lawfulness of that breach can be demonstrated by applying for a Certificate of Lawfulness. Whether an agricultural occupancy condition has been contravened depends on the particular facts and the exact wording of the condition. Although we have not located case law squarely on whether ownership of a farming enterprise constitutes being employed in agriculture, related authorities show the courts have taken a broad, liberal view of agricultural occupancy conditions when concluding that no breach has occurred......

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......

Can the tenant claim its costs from the landlord? There is no general statutory right for a tenant to recover its costs from the landlord. Any ability to do so would depend on the wording of the lease, which must be reviewed to see whether it grants such an entitlement in this scenario. In practice, it would be unusual for a lease to contain a provision of this nature. It is also unclear on the information given in this Q& A whether the inspection was carried out solely by the tenant to determine if a breach had occurred, or whether it was arranged by the landlord, with the tenant required to attend to provide access to an unmanned site......

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......

What is the waste duty of care? Under section 34(1) of the Environmental Protection Act 1990 ( EPA 1990), businesses are required to handle controlled waste safely and dispose of it lawfully. This obligation is called the waste duty of care. Controlled waste covers household, industrial and commercial waste, and anything of that kind. In brief, the duty means waste holders must: ensure their waste goes to a suitably permitted facility ensure anyone managing their waste complies with permit conditions prevent the escape of waste transfer waste only to a registered carrier or authorised permit holder provide a written description of the waste when it is transferred Failure to meet these duties is an offence under EPA 1990, s 34(6), and is punishable: on summary conviction, by a fine not exceeding the statutory maximum on conviction on...

It is assumed that the landlord has instituted proceedings to forfeit the lease due to non-payment of rent. Given the claim has succeeded, it is further assumed the lease contained a clause authorising re-entry upon non-payment of rent, and that either the arrears were duly demanded or section 210 of the Common Law Procedure Act 1852 applies, with at least six months’ rent outstanding and insufficient distress available on the premises to satisfy the arrears, in which situation any demand is dispensed with. There is likewise no requirement to serve a notice under section 146 of the Law of Property Act 1925 where the breach relied upon is non-payment of rent. In matters of forfeiture for non-payment of rent, as in this instance, relief is exercised under the equitable jurisdiction of the courts, and any relief is considered, granted or refused strictly within that...

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...

In such situations, if a tenant declines to grant the landlord entry to examine the premises, this amounts to a breach of the lease terms, as the lease contains a provision giving the landlord the right to enter the property for inspection, following a stated period of notice thereafter......

LTA 1954 and contracting out Most commercial tenancies where the occupier is the tenant benefit from statutory security of tenure under the Landlord and Tenant Act 1954 ( LTA 1954). This framework sets out a procedure that must be followed to end the tenancy, even after a fixed term has run its course. It does not cover tenancies at will. The level of protection provided by the LTA 1954 can be advantageous for tenants. That said, it is common for the parties to decide, as part of their agreement, that these LTA 1954 protections will not apply to a fixed term tenancy. Excluding the LTA 1954 is not accomplished simply by adding wording to that effect in the lease. The necessary steps are specified in LTA 1954, section 38A, which refers to the Regulatory Reform ( Business Tenancies) ( England and Wales) Order 2003, SI...