Property (7)

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What is a contract in the context of leases also referred to as?: An Agreement for lease
When do parties need to enter into an agreement for lease?: Only if there is some reason why the property cannot be leased straight away, e.g. requiring planning permission.
What would an agreement for lease require a tenant to do, for example if planning permission was currently outstanding?: An agreement for lease would contractually require the tenant to move in once the planning permission query was resolved.
What key clauses can you expect to find in a lease?: 1. Repair
2. Service Charge
3. Alienation
4. Term
5. Insurance
6. Rent review
7. Right to break
8. Alterations
When you're acting for a tenant taking a lease, what three 'Ls' do you need to consider?: 1. Lease
2. Landlord's legal title
3. Law
In the context of a tenant's rights, what do you need to ensure?: That the tenant has all the rights its needs so that it can use the property properly.
What common rights need to built into leases?: 1. Rights to use common areas, e.g. lifts, toilets, hallways;
2. Right to connect to service media;
3. Additional rights (to use a bin store or car parking spaces).
What search do you carry out to check whether a road is an adopted highway?: A CON29R search.
In terms of a repair clause, what should it cover?: (1) Put and keep the Premises;
(2) Good and substantial repair and cond;
(3) But not repair where the damage is caused by an Insured Risk; and
(4) Provided that the tenant shall not be required;
(5) To put the premises in any better stage of condition or repair; and
(6) Than as evidence by the schedule of condition attached.
What should a replacement of items clause contain?: (1) Tenant to replace Fixture and Fittings which are beyond economic repair at any time during or at the end of the Term;
(2) With new articles of a kind and quality substantially the same;
(3) Provided no obligation to replace where the disrepair is caused by an Insured Risk.
What is a Jervis v Harris clause?: A self help clause that permits the landlord to enter the premises and make good any damaged caused. The tenant can claim the cost of making the damage good from the tenant.
Must a landlord have a Jervis v Harris clause in the lease to rely in self-help?: Yes
In terms of a clause that permits a landlord to enter the premises, what should the clause say?: (1) The Landlord may enter the Premises;
(2) On reasonable notice;
(3) During normal business hours;
(4) Except in an emergency.
In terms of the time that a tenant should be allowed to remedy a breach, how should the clause be worded?: Should be within the 'reasonable time required by the Landlord'.
What should the landlord's costs be in making good any breach under a lease?: The costs should be 'reasonable and proper'.
For the purpose of sums due from a tenant, what should the clause contain?: A length of time in which payment should be made. Payment should not be 'on demand' which effectively means immediately.
When describing the nature of money owed to a landlord, how should a tenant describe the monies due?: As a debt, rather than as damages.
Is a landlord's right to forfeiture automatic?: No there must be a forfeiture clause in the lease.
To what does the Leasehold Property (Repairs) Act 1938 apply?: (1) Only applies to breaches of repair covenants; and
(2) Leases for a term of more than 7 years with at least 3 years left to run.
How does the Leasehold Property (Repairs) Act 1938 protect tenants?: Extra protection to tenants so that the landlord has to serve a special s. 146 notice on the tenant to forfeit the lease.
Must a special s. 146 notice contain anything in particular?: The tenant is entitled to serve a counter notice on the landlord within 28 days.
What is the effect of a tenant serving a counter s. 146 notice on the landlord?: The landlord is not permitted to forfeit the lease without the consent of the court.
Does the Leasehold Property (Repairs) Act 1938 run further than forfeiture?: Yes. If the L wants to claim damages from the tenant, and the Act applies, the L also has to serve the special s. 146 notice on the tenant.
Is a s. 146 notice required for non-payment of rent?: No. The landlord will prefer for the term 'Rent' to include all other charges so that the landlord does not need to serve a s. 146 notice for the purpose of claiming non-payment of a service charge, for example.
What is the name of a lease in connection with which the landlord expects to receive a clear income stream?: Full repairing and insuring lease (FRI)
What will landlords look for in tenants?: Good covenant strength, i.e. a good ability to pay current and reviewed rental rates.
What might landlords ask for as security from a new tenant?: 1. Rent deposit
2. Guarantee (Parent/Bank)
3. Original tenant liability
What should you be mindful of when a lease is being granted out of a property that is subject to a mortgage?: Whether the lender's consent has been obtained.
What search do you carry out if you're taking over the whole of a landlord's title?: An OS1 search.
What search do you carry out if you're taking out a lease over only part of a landlord's title?: An OS2
What leases need to be registered at the Land Registry?: (1) granted post 13 October 2013; and
(2) for more than 7 years.
What four types of classes are available for the purpose of registering a lease?: (1) Absolute
(2) Good Leasehold - Landlord's title not deducted at the time the lease was granted
(3) Possessory - Tenant in occupation but no paperwork
(4) Qualified - no other title can be granted
What does the term 'Demise' refer to?: The extent of the property let to the tenant.
How is the 'demise' of part of a property be described?: As the internal envelope of the property occupied by the tenant.
What should you note in relation to clauses that require the tenant to 'keep' the premises in repair?: This also entails an obligation to put them in repair first.
What word is better for the purpose of preventing the tenant from having to put the property into repair?: The word maintain should be used.
What do you call a document setting out the state of a property at the beginning of a tenancy?: A schedule of condition
For the purpose of setting the standard of repair, what might a tenant try to exclude?: Obligations to repair:

- 'Fair wear and tear' or
- 'Renew' or 'Replace and build'
To the extent that a clause requires a tenant to rebuild something, what should the clause state?: To the satisfaction of the landlord's surveyor, acting reasonably.
Should an obligation to replace fixtures and fittings with identical or new fixtures and fittings be avoided?: Yes.
In the context of new or refurbished buildings, what might a solicitor acting for the tenant wish to exclude?: Exclude the tenant's repairing obligations arising from an inherent defect.
What clause should be added for the purpose of redecorating?: The tenant will not be required to redecorate in the last year of the term if the tenant has redecorated within the previous twelve months.
What might a landlord serve on a tenant at the end of a tenancy?: A schedule of dilapidations
For the purpose of a yielding up clause, how should the clause end?: 'to the satisfaction of the landlord's surveyor, acting reasonably'
What does Recommendation 7 of the Code for Leasing Business Premises say?: (1) A tenant's repairing obligation should be appropriate to the length of the term and condition of the premises;
(2) Tenant should only be obliged to give premises back in the same condition as received.
Might insurance payments be reserved as rent?: Yes
Under the Common Law, are tenants required to continue paying for premises that have been rendered unfit for use?: Yes, unless there is a clause suspending the payment of rent.
For the purpose of a clause related to the premises becoming unfit for use, what would the tenant wish to see included in terms of monies to be paid?: All sums reserved as rent.
What should you look out for in a clause regarding the premises becoming unfit for use?: The clause should also include 'access to them'.
What should be included in the lease in connection with the handling of insurance monies?: An obligation on the landlord use insurance monies to reinstate the premises and make up any shortfall out of its own monies.

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