leases

Created by: Rachel
Created on: 03-04-14 11:55

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Leases
- There are 3 characteristics of a lease
  - Exclusive possession
    - must be exclusive possession for lease to exist
      - this means tenant has control over anyone who enters the premises and can exclude everyone (incld. landlord)
      - if someone occupying property doesn't have exclusive possession - can only claim a licence
    - no exclusive possession if ...
      - the land lord is entitled to move the occupiers from room to room
        Westminster City Council v Clarke
      - other rules - may have to share w/ others, be in the room by Xpm & can't have castors after that time
      - there is merely exclusive occupation as a hotel guest
        Abbey-field (Harpenden) Society Ltd v Woods 1968
      - services are provided or if the premeis are provided as a part of an employment contract e.g.:servant
    - will be exclusive possession if the provision of services/retention of the key is a sham
      - Ashlan v Murphy 1990
        landlord can retain keys but still has to request entry from tenant
  - A term (period of occupation)
    - there must NO uncertainty in the period of the lease
      - commencement and duration must be clear on the lease
    - periodic tenancies are saved as each period is determined by the period for which rent is payable
    - maximum date of duration MUST be certain at the start of the lease
      - Lace v Chantler 1944
        lease granted for the 'period of the war' - void as at the time of grant, no one had an idea of how long the war would last - thus when lease would come to an end
      - Prudential Assurance v London Residuary Body 1992
  - Rent (or other consideration)
    - any consideration paid to the landlord in return for the use of the premises
    - usually $$$ but can be paid in kind e.g.: benefits
    - possible to have a lease w/o rent
      - Asburn Anstalt v Arnold 1989
    - if rent is payable then it must be clearly stated in terms of the lease
  - just because people term the agreement a licence/lease doesn't mean that is os one of them - MUST LOOK AT THE NATURE OF THE AGREEMENT
- Creation of a lease
  - Creation a lease exceeding 3 years
    - must be made by DEED (s52(1) LPA 1925)
      - must be signed, sealed & delivered
      - If lease is for 7 years or more - won't take effect until registered under LRA 2002
    - After Spet 1989 a contract to grnt lease must satisfy s(2) 1 LP (MP) Act 1989
      - agreement must be in writing, incorporate all terms, signed by both parties
        not satisfied- no equitable lease will occur
  - Creation of a lease LESS than 3 years
    - may be created oral or by a written agreement
      - BUT MUST
        take effect in possession
        lease must begin at date of grant and not in the future.
        
        even if lease is less than 3 years must be created by deed if its to take effect in the future
        
        at the best rent possible which can be reasonably obtained w/o taking a fine or premium
  - Equitable lease may arise when
    - 1. defects in grant/transfer of title
    - 2. failure to apply for registration under LRA 2002
    - 3. contract to create/transfer a leasehold term
    - 4. grant of a lease by the holder of an equitable estate
    - Arguemnts in Walsh v Lonsdale for an equitable of legal lease
      - Equitable lease
        act of entering the property& paying rent supported the written agreement
        
        agreement was a written agreement - not enforceable at law for a lease of 7 years w/rent payable in advance
        
        lease would be enforceable in equity under equitable principles
      - Legal lease
        tenant had an implied lease because he had possession of property& paid rent
        
        lease would be an annual tenancy b/c rent was paid at 6 monthlyintervals
        
        as rent has been paid and accepted in arrears the law presumed that it was a term in the legal lease and landlord couldnt change to claiming rent in advance
- Terms in a lease
  - Landlords and tenants have obligations under the lease
    - Landlords covenants
      - covenant to allow tenant quiet enjoyment
        tenant is guaranteed the right to enjoy property w/o
        interference from anyone else claiming rights in the land
        
        anything interfering w/ enjoyment of premesis e.g.: allowing the roof to leak
        
        if tenant can prove they are subject to harassment or unlawful eviction this is a breach
        Lavender v Betts
        removal of windows and doors
        
        Kenny v Preen
        persistent threats w/ resulted in tenant leaving
        
        Southwark v Mills
        tenants complained about excessive noise from neighbouring flats due to poor quality of soundproofing
        
        won't be a breach if it causes inconvenience rather than genuine interest
        Browne v Flower
      - covenant that the landlord won't derogate from his grant
        GP: must not take away that which you have given
        Landlord can't take away from the tenant any rights that have been granted under the lease
      - covenants that the premises are fit for the purpose for which they are let or are habitable
    - Tenants covenants
      - 1. pay rent
      - 2. pay rates and other taxes on premises
      - 3. liabe for damage - can't commit an act/omission that alters state of premises
      - 4. duty to allow the landlord to view the premesis
        must allow landlord to enter at a pre-arranged time if landlord is under a duty to repair
- Remedies
  - Distress
    - non-payment of rent
      - can be enforced w/o court proceedings
      - landlord sells goods belonging to tenant
        landlord goes onto premises and take equivalent value of goods to the outstanding amount owed in rent
  - Forfeiture
    - can be used for non-payment of rent and breach of other covenants
      - non-payment of rent
        must be formal rent demand (not necessary if there are 6 months outstanding and the good on premises available for distress are less than amount needed to cover rent)
      - other breaches of covenant
        damages/injunctions
        
        The 146 notice
        1. tenant must be in breach of a covenant - other than non-payment of rent
        
        2. tenant must be given chance to remedy the breach or apply for relief from forfeiture
        
        3. notice won't be valid unless it specifies breach
        
        4. must require tenant to remedy the breach if it can be remedied
        
        5. requires tenant to pay compensation for breach
        
        circumstances where 146 doesn't apply
        Rugby School v Tannahill
        premises used as brothel - breach was irremediable and it didn't matter that the landlords notice didn't require the tenant to remedy the breach
        
        Expert Clothing Service & Sale v Hillgate House
Rent (or other consideration)
- any consideration paid to the landlord in return for the use of the premises
- usually $$$ but can be paid in kind e.g.: benefits
- possible to have a lease w/o rent
  - Asburn Anstalt v Arnold 1989
- if rent is payable then it must be clearly stated in terms of the lease

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leases

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