Legal Q&A

It is assumed for the purposes of this Q& A that the refusal of consent concerns an alienation application (ie a proposal to assign/underlet/charge/part with possession). If, however, the matter instead relates to alterations, the position will need to be reconsidered, as distinct case law and statutory provisions govern that topic. As a useful starting point for that subject, see: Alterations and improvements for property disputes lawyers—overview. Unreasonable withholding of consent As set out in Practice Note: Landlord's consent to assign or underlet, the High Court in Ansa Logistics v Towerbeg confirmed that consent to assign/underlet cannot normally be withheld merely because a landlord is able to point to a breach of covenant. The key question is whether the particular breach is of such a character or seriousness as to warrant the refusal of consent......

Under common law, the general rule is that forfeiting a headlease brings to an end any interests that flow from it, including subordinate derivative arrangements like a sub-lease......

Common practice is to use a retrospective licence to alter after works have already been fully completed...

Where the term of an underlease matches, or exceeds, the head lease, it is treated as an assignment rather than a true underlease. To prevent this outcome, the underlease must run at least one day shorter than the superior lease......

Under section 213 of the Housing Act 2004 ( HA 2004), any deposit received in connection with an assured shorthold tenancy ( AST) has to be safeguarded by an approved tenancy deposit scheme as required by that legislation. Non-compliance with HA 2004 can leave a landlord unable to issue a section 21 Housing Act 1988 notice to regain possession of the premises. For sums received on or after 6 April 2007, a tenant might additionally have grounds to apply for monetary sanctions against the landlord......

Limitation period Where a lease contains no express provision restricting the timeframe for bringing a dilapidations claim, and the lease has been executed as a deed, the limitation period to commence a claim is 12 years ( Limitation Act 1980, s 8). See Practice Note: Limitation Act 1980—the principal limitation periods. It is a common tenant amendment that the landlord may recover the costs of preparing the schedule only if it is served within a specified period following expiry of the lease. Please see below regarding the costs of any dilapidations proceedings (i.e. those costs incurred from the point of issue and service of proceedings onwards). However, the Dilapidations Protocol (formally adopted under the Civil Procedure Rules 1998) states at paragraph 3.3 that schedules ought to be issued within a reasonable time......

In England, landlords cannot serve a section 21 notice while they are failing to meet prescribed regulatory duties, as set out in section 21A(1) of the Housing Act 1988 ( HA 1988). Where any such duty is breached, service is barred. The rules currently in effect are the Assured Shorthold Tenancy Notices and Prescribed Requirements ( England) Regulations 2015, SI 2015/1646. Compliance requires the landlord to supply the tenant with: an energy performance certificate, under the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118; a gas safety certificate, under the Gas Safety ( Installation and Use) Regulations 1998, SI 1998/2451; and a copy of ‘ How to rent: the checklist for renting in England’, published by the Department for Communities and Local Government as required......

This Q& A This Q& A considers how the Housing Act 2004 ( HA 2004) applies to assured shorthold tenancies ( ASTs) governed by the Housing Act 1988 ( HA 1988). In brief, when a landlord takes a deposit for an AST, two actions are required within 30 days of receiving the funds. First, the initial requirements of an authorised tenancy deposit scheme must be satisfied in full ( HA 2004, s 213(3)). Secondly, the tenant must be provided with specified prescribed information ( HA 2004, s 213(5)(6)). The relevant prescribed information is set out in the Housing ( Tenancy Deposits) ( Prescribed Information) Order 2007, SI 2007/797. Failure to comply limits the landlord’s entitlement to serve a notice under HA 1988, s 21, and entitles the tenant to apply for an order for the return of the deposit or for its payment into an...

Section 213 of the Housing Act 2004 ( HA 2004) Obliges any landlord who has taken a tenancy deposit to lodge the sum with an authorised scheme and to give the tenant details about it within 30 days of receipt; before amendment by section 184 of the Localism Act 2011, the deadline for doing so was 14 days......

What is the effect of disclaimer? Sub-tenants can stay in occupation after a disclaimer of the head-lease, because that lease is terminated only as between the landlord and the tenant, and not, in the same fashion, as between the tenant and the sub-tenant. As set out in Chapter 5 of Butterworths Property Insolvency, at 5.26, the sub-lease endures so far as is necessary to uphold the sub-tenant’s continuing right to occupy. Nevertheless, the head-landlord is under no obligation to observe the provisions of the sub-lease......

This could be the appropriate method to secure lawfully an access right from B’s property across C’s property...

Given the timescales, the matters at hand give rise to questions requiring careful evaluation of factual circumstances and professional judgement. The grant of planning permission and the issue of a building regulations completion certificate confirm that the requisite approvals were secured in 1996, after due consultation with the relevant authorities, at which point the siting of the sewer would have been taken into account......

Mental incapacity of executor Mental capacity may justify excluding an executor from probate (see Evans v Tyler (1849) 163 ER 1266 at [131] (not reported on Lexis Nexis®)). The position for a sole executor who is incapacitated is governed by the Non- Contentious Probate Rules 1987 ( NCPR 1987), SI 1987/2024, r 35... Under the NCPR 1987, SI 1987/2024, the usual course is for the district judge or the registrar to issue a grant of administration (formerly termed a ‘durante dementia’) for the use and benefit of A, to continue until further representation is granted or otherwise as the district judge or registrar directs. See also NCPR 1987, SI 1987/2024, r 31... Further, r 35(2) of the NCPR 1987, SI 1987/2024, prescribes the order of priority for a grant where the executor lacks mental capacity......

In this Q& A, we assume that B’s claim is smaller than A’s. Legal process against the company Under paragraph 43(2) of Schedule B1 to the Insolvency Act 1986 ( IA 1986), the moratorium prevents any legal process—covering legal proceedings, execution, distress and diligence—from being started or continued against the company or its property without the administrator’s consent or the court’s permission. This wording is wide enough to encompass any remaining actions or steps that might otherwise be taken against the company or its property. Accordingly, B can only bring an action against A with the approval of the administrator or the leave of the court. The purpose of the moratorium (and the interim moratorium) is to safeguard the company and its assets from creditor action during the company’s administration and the pre-appointment period. It bars any steps, actions or processes from being begun or carried on...

We are presuming that A is a person...

This Q& A Assumes that the protection cited in this query concerns the safeguard granted by paragraph 2 of Schedule 8 to the Building Safety Act 2022 ( BSA 2022). The BSA 2022, Sch 8 makes provision for the payment or otherwise of certain service charge amounts connected to relevant defects in relevant buildings, as set out. In particular, BSA 2022, Sch 8, para 2 states that no service charge is payable under a lease of any premises in a relevant building in respect of any relevant measure relating to a relevant defect where a relevant landlord is responsible for the relevant defect, or is associated with the person responsible for the relevant defect. If it is established that BSA 2022, Sch 8, para 2 applies, no service charge is payable in respect of ‘relevant measures’......

Under section 5(2) of the Housing Act 1988 ( HA 1988) By virtue of section 5(2) of the Housing Act 1988 ( HA 1988), when a fixed-term assured shorthold tenancy ends, a periodic tenancy comes into being on the same terms and conditions. This outcome is excluded where the tenancy is terminated by a court order, by surrender, or by some other step taken by the tenant. For the purposes of this Q& A, it is assumed that HA 1988, s 5(2) applies to this tenancy. If not, and the tenancy has been altered, the guarantee may have been discharged. A guarantee may lapse if the underlying agreement is varied—whether expressly or by conduct—without the guarantor’s agreement, save where the change is ‘self-evidently insubstantial or non-prejudicial to the guarantor’ ( Holme v Brunskill). We also proceed on the basis that the wording of the...

It is not evident from this Q& A whether the initial term of the Assured Shorthold Tenancies ( AST) has lapsed, or whether the fresh tenancy agreement amounts to a renewal or an extension. The Q& A indicates that a replacement tenancy has been issued, at an increased rent compared with the original AST, and for another fixed duration period......

Where a lease is silent, items left at the premises after expiry of the term remain owned by the tenant (or any other third-party owner). The landlord, as a result, becomes an involuntary bailee of those items. This can create difficulties for a landlord aiming to clear the space for re-letting or another purpose, and may involve additional expense. In particular, the landlord: cannot take or dispose of the items, and must act in a manner that is right and reasonable may face liability in conversion, or for wrongful interference with goods, if the items are sold, damaged or discarded These exposures can be managed by using the procedures in the Torts ( Interference with Goods) Act 1977 ( T( IG) A 1977), either by serving notice or asking the court for permission to sell the items. Serving notice is the route more often used in...

GDPR The General Data Protection Regulation ( GDPR), Regulation ( EU) 2016/679, sets out a framework that protects individuals in respect of the processing of personal data, whilst at the same time promoting the free movement of that data. The Data Protection Act 2018 incorporates the GDPR into the law of England and Wales. Accordingly, it applies to the handling of data within insolvency proceedings in this jurisdiction. For comprehensive information and an overview of the GDPR regime, see: UK data protection law collection. GDPR and Insolvency Proceedings As noted in the question, section 312(2)(b) of the Insolvency Act 1986 ( IA 1986) imposes a duty on the prior trustee in bankruptcy to deliver property and records to the new trustee in bankruptcy. It is important to recognise that this obligation has serious consequences, and a failure to comply amounts to contempt of court......