Property (11)

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What is required for a business tenant to remain in occupation at the end of its tenancy?: (1) lease qualifies for protection; and
(2) the tenant complies with specified procedures.
What term is used to describe tenants that remain beyond the contractual expiry date of their tenancy?: The tenant is said to be 'holding over'
For the purpose of s. 23(1) of the LTA 1954, what does 'tenancy' mean?: The tenancy must fulfil the requirements by Street v Mountford.
Case: Street v Mountford: Tenancy:

requires exclusive possession and for an absolute term, includes:

(1) periodic and fixed term tenancies; and
(2) oral as well as written tenancies.
What is meant by occupation under s. 23(1) of the LTA 1954?: Occupier of at least part of the premises. Therefore, sub-letting the whole premises will preclude the original tenancy from the protection of the 1954 Act.
Tenancy: requires exclusive possession and for an absolute term, includes: (1) periodic and fixed term tenancies; and (2) oral as well as written tenancies.: Street v Mountford
What does case law add with respect to 'business' as defined in the 1954 Act?: A members' tennis club and charity are businesses but not a Sunday school.
What tenancies are specifically excluded from the 1954 Act?: (1) Agricultural holdings
(2) Mining
(3) Employment-related leases
(4) Tenancies not exceeding 6 months (note - two caveats)
Are tenancies at will excluded under s. 43 of the 1954 Act?: Not under the Act. Case law confirms they are excluded.
Can parties contract out of the protection afforded under s. 23(1) of the 1954 Act?: Yes, provided this is done prior to the grant of the lease.
What is the procedure for contracting out of the protection of s. 38A of the 1954 Act?: 1. Warning notice to tenant 14 days before T becomes bound;
2. T must sign a simple declaration confirming receipt and acceptance;
3. Lease to contain: (a) conf. of contracting out and (b) ref. to docs (1.) and (2.) above.
Can the 14 day notice period for contracting out of the protection of the 1954 Act be waived?: Yes, if done so in front of a independent solicitor to the effect that the warning has been received and T accepts the consequences.
When parties contract out of the protection afforded under the 1954 Act, which landlord serves the warning notice?: The immediate landlord.
What three ways can a landlord terminate a lease under the 1954 Act?: 1. Landlord's notice under s.25
2. Tenant's request under s. 26
3. Tenant's notice under s. 27
What does a landlord's notice under s. 25 LTA 1954 comprise?: In statutory prescribed form:

(1) a friendly notice not to oppose a new tenancy; or
(2) a hostile notice opposing a new tenancy (including grounds).
What is a tenant's request for a new tenancy?: In statutory prescribed form, notice terminating the current tenancy and requesting a new tenancy.
What is a tenant's notice to terminate?: Simply a notice by the tenant, served on the landlord, to terminate the tenancy. This does not have to be in statutory prescribed form.
What are the requirements for the purpose of serving a s. 25 notice under the 1954 Act?: (1) Can be served before or after the CED date provided:

(2) the termination date is not less than 6 months or more than 12 months from the date that the notice was served;

(3) the termination date cannot precede the CED.
In addition to considerations related to timings, what must a landlord include in a s. 25 notice?: At least one of the statutory grounds for refusing to grant a new lease (s. 30)
By when must an application to court be made? Auth?: (1) any time after service of the s. 25 notice; and
(2) must be made by the termination date contained in the notice.

Auth - s. 29A
What are the rules with respect to a s. 36 request?: 1. Tenant can serve before or after the CED provided;
2. The proposed commencement date is not less than 6 months and not more than 12 months from the date notice is served; and
3. proposed date does not precede the CED.
What can a landlord do if it opposes a tenant's application for a new lease?: 1. Can serve a counter-notice within 2 months of the tenant's s. 26 notice.
2. Counter-notice must state a ground of opposition.
When can an application to court for the purpose of a s. 26 notice be made?: 1. at any time after the landlord has served a counter-notice; or
2. once two months have elapsed
3. deadline for application is the day before the proposed commencement date as set out in the notice.
What are the implications if a tenant fails to apply to the court when it's in its interest to do so?: The tenant will lose its right to renew
For the purpose of protecting the court application from the perspective of a tenant, what could be done?: (1) Lodge a unilateral notice against the landlord's title if registered; or
(2) Lodge a pending land action for unregistered land.
How does the actual service of notices work, when can and can't they be served?: Service of a ss. 25 or 26 notice prohibit service of the other, so if a s. 25 notice is served, a s. 26 notice cannot be served and vice versa.
Who is the correct landlord for the purpose of serving notices under ss. 25, 26 or 27?: The 'Competent Landlord'.
Where can a landlord's grounds for opposition be found?: s. 30 LTA 1954
How will the court consider the factors listed in s. 30 of the 1954 Act?: Some are discretionary (yellow) other mandatory (fully pink)
While discussions related to the new lease continue, what can either party apply for?: An interim rent (s. 25A LTA 1954)
What are the consequences for the purpose of the holding over period for a lease on which stamp duty was paid?: There will be no SDLT implications.
What are the consequences for the purpose of the holding over period for a lease on which SDLT was paid?: The holding over period will count as an extension of the original lease. You will need to recalculate the net present value and the beginning of every year the tenant holds over. SDLT may be due.
Might a tenant every be awarded compensation by the landlord? Auth?: S. 37
Can the parties exclude a tenant's right to compensation?: Yes. You should always check the lease t see if this has occurred.
What happens if the parties cannot agree the terms of the new lease?: The court must decide the terms.
What will the principal terms of a lease decided by the court be?: 1. Premises - as at the date of the order
2. Duration - max 15 years
3. Rent - comparables and disregards
4. Commencement - will be 3 months and 21 days after the court's order. Lease term commences the following day.
Can a tenant who has served a s. 27 notice then serve a s. 26 notice?: No.
For the purpose of a landlord wishing to take occupation, what must you consider?: The five year rule - a landlord cannot rely on attempting to take occupation if the landlord bought the reversionary interest within 5 years of the termination date set out in the notice.

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Created By shughes