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About this book

Landlord and Tenant Law contains summaries, exercises and workshops to help the reader to make sense of a complex area of Law. This is an extensively revised fifth edition of this popular text, particularly in terms of its coverage of the effects of covenants in leases and also in an expanded section on business tenancies.

Table of Contents

Leases: the general law

Frontmatter

Chapter 1. Essential characteristics of a lease

Abstract
Most people who see particulars in an estate agent’s window offering for sale a desirable leasehold residence (often a flat) are aware that what is offered is something for a certain period, such as ‘the remainder of a ninety-nine-year lease’, and that this is less than a freehold, which connotes an unlimited and indefinite ownership. Few people would realise, however, that the basic distinction between the two derives from the historical development of land law.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 2. Different types of leases

Abstract
As we have already seen, one of the essential characteristics of a lease is that it is for a fixed and definite duration (Lace v. Chantler (1944)). This was more recently confirmed by the House of Lords in Prudential Assurance Company v. London Residuary Body (1992). Also, although its technical legal name is a term of years, it may in fact be for any period of less than a year, or even for one day.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 3. Formalities for creating a lease

Abstract
A lease is essentially a contract between two parties, the landlord (or lessor) and the tenant (or lessee). It was held in the House of Lords case of Rye v. Rye (1962) that the landlord and the tenant must be different persons, and that a lease granted by two persons in their private capacity to a partnership of which they were both partners was void. Viscount Simonds said in the case: ‘It is meaningless to say that a man accepts from himself something which is already his own.’
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 4. Covenants and conditions in leases

Abstract
A lease is essentially a contract which creates an interest in land. Any contract may be made subject to certain conditions, and leases are no exception to this rule. The condition may be a condition precedent, such as the grant of planning consent to a change of user, so that the lease does not take effect at all unless the condition is fulfilled, or a condition subsequent, whereby the lease terminates should the condition on which it is granted cease to apply and the landlord therefore has a right to re-enter.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 5. Obligations implied on behalf of the landlord

Abstract
If a covenant for quiet enjoyment of the property is not expressly given in the lease, then one will be implied. The express covenant is usually qualified to extend to the unlawful acts of the landlord, or the lawful acts of anyone claiming through him. The implied covenant is similarly qualified. It will not therefore apply to an interruption in enjoyment by anyone with a superior title to the landlord, such as a head lessor as regards the lease of a subtenant as in Celsteel Ltd. v. Alton House Holdings Ltd. (No. 2) (1986),1 unless the wording of an express covenant is made to cover a head lessor specifically, as it was held to do in Queensway Marketing Ltd. v. Associated Restaurants Ltd. (1984).2 The covenant applies to the physical enjoyment of the premises, but not to a mere inconvenience. Thus in Owen v. Gadd (1956) a tenant was able to recover damages for breach of the covenant where a landlord erected scaffolding outside the door and window of his shop, thereby interrupting his business. In view of the Court of Appeal case of Goldmile Properties Ltd. v. Lechouritis (2003), the breach of the covenant in this case must be considered in the context of any covenant by the landlord to repair, and provided that the landlord is reasonable in carrying out repairs with the minimum of disturbance to the tenant, scaffolding for six months may not amount to a breach (see Chapter 9.1).
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 6. Obligations implied on behalf of the tenant

Abstract
Rent is the consideration given by the tenant for occupation of the land or premises. Although almost invariably a money payment, it does not have to be, and in the old case of Pitcher v. Tovey (1692), bottles of wine were held to be recoverable as part of the consideration under a lease. The most usual alternative to a money payment will be services to be rendered on a service tenancy.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 7. Enforceability of leasehold covenants

Abstract
The law relating to the passing of the benefit and burden of covenants in a lease has been drastically changed by the Landlord and Tenant (Covenants) Act 1995 (the 1995 Act), which came into force on 1 January 1996. All sections of the Act apply to new leases, i.e. to leases granted on or after that date, otherwise than in pursuance of an agreement entered into, or a court order made, before that date. A lease granted pursuant to the exercise of an option is an old lease if the option was granted before 1996. If an old lease is so substantially varied as to effect a surrender and re-grant by operation of law after 1995, the lease that arises in its place is a new lease for the purposes of the Act. An overriding lease granted after 1995 is a new lease only if the lease in respect of which the tenant made payment in accordance with section 17 of the 1995 Act was itself a post-1995 lease (see 7.5.3 below).
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 8. Covenants against alienation

Abstract
Any formal written lease will contain a number of covenants by the tenant and probably some covenants by the landlord. As we have seen in Chapters 5 and 6, there are certain covenants implied by either case law or statute, and in the case of some of the repairing covenants implied by statute on behalf of the landlord, it is expressly enacted that these cannot be modified or abrogated by the terms of the lease. In so far as any express covenant in a lease purports to do this, it will be ineffective.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 9. Repairing covenants

Abstract
In Chapters 5 and 6 the extent to which covenants relating to the condition and maintenance of the premises will be implied (by statute or case law) on behalf of both the landlord and the tenant was considered. An implied provision may be varied by an express one, except in so far as some of the statutory obligations of a landlord cannot be contracted out of, and any covenant which purports to do this will be void. For example, s.11(1) Landlord & Tenant Act 1985 may be excluded or modified only by an order of the court, but not by agreement between the parties.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 10. Covenants restrictive of the user of the premises and covenants against alterations

Abstract
A formal lease will often contain covenants imposing restrictions on the user of the demised premises. These may be positively phrased — for example, to use the demised premises as a private dwellinghouse only — or negatively phrased — such as not to use the demised premises for certain trades. Covenants as to user are liberally interpreted, so that only a slight deviation from a covenant which is largely observed will not amount to a breach.1 In St. Marylebone Property Co. Ltd. v. Tesco Stores Ltd. (1988), Hoffman J. said that in order to constitute a breach of covenant, the sale of prohibited items would have to constitute a distinct trade, but need not be the dominant trade. This was adopted and approved as the test for breach of a user covenant by the Court of Appeal in Williams v. Kiley (2003) discussed more fully in 10.3 below.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 11. Reservation of rent and rent-review clauses

Abstract
It has already been briefly mentioned in Chapter 6 that payment of rent is an obligation on the part of the tenant which will be implied into a lease even if there is no express reservation. Most leases will in fact expressly reserve a rent, however.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 12. Service charges and insurance

Abstract
It is quite usual for demised premises to be part of a larger building, such as a flat in a block, a shop in a shopping precinct, or an industrial unit on an industrial estate. In these circumstances, ownership of the common parts will remain with the freeholder, who may be the original developer or an assignee from him. He will be responsible for repairs and maintenance of the common parts, and in some cases, the provision of services for the tenants.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 13. Options to renew the lease, break clauses and options to purchase the reversion

Abstract
A lease will sometimes contain an option for the lessee to renew it for a further term. The lessee will not be able to take advantage of the option unless he has complied strictly with all the covenants and conditions in the lease. In West Country Cleaners v. Saly (1966) the tenants were given an option to renew the lease provided there had been due observance and performance of all the covenants in the lease. The lease contained a covenant to paint, paper and whitewash every third year. The tenant did not comply strictly with the covenant although the premises were well kept and the landlord, who often visited, never complained. It was held nevertheless that the landlord’s silence did not amount to a waiver of the breach of the covenant, that the option to renew the lease was a privilege and the tenant was disqualified from exercising it by reason of the breach of the covenant, even though it was a trivial breach.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 14. Title to leasehold property and enforceability of a lease against a purchaser of the freehold reversion

Abstract
As most readers will be aware, the 1925 property legislation was intended to make radical changes in the process of conveyancing. Its main purpose was to simplify the whole procedure and, to this end, the Land Registration Act 1925 (LRA 1925) extended an existing (but little used) system of registration of title to land. The system has been further extended by subsequent Land Registration Acts, and registration of title at local Land Registries was finally extended to the whole country in 1990. The Land Registration Act 2002 (LRA 2002), part of which brought into force extensive and significant changes on 13 October 2003, furthers the ultimate aim of registered title, which is that the register will be a mirror of the title to the land and will contain everything which a purchaser needs to know.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 15. Termination of a lease

Abstract
On the termination of the contractual tenancy between the parties, a statutory protected tenancy will arise if the property falls within the limits prescribed by the Rent Act 1977 or Housing Act 1988 (see chapters 16, 17 and 18). If the demised premises are commercial premises, then the tenant may have a right to a continuation tenancy under s.24 Landlord & Tenant Act 1954, Part II. In these circumstances, the landlord will not be able to obtain possession unless he can prove he has one of the grounds for doing so (see Chapter 19).
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Leases: the statutory codes

Frontmatter

Chapter 16. Private residential accommodation

Abstract
Although this is the area of law most frequently associated with landlord and tenant, it has come to affect a dwindling number of people — despite attempts by successive governments to reinvigorate the private rented sector. The first Rent Act (known as the Increase of Rent and Mortgage Interest (War Restrictions) Act) was passed in 1915 in order to prevent landlords (most particularly in Glasgow) from raising rents to exploit the increased wages of munitions workers. As its title suggests, the Act was intended as a temporary measure but it was followed by a succession of Rent Acts which variously reduced security and rent control (in 1923 and 1933), restored it (in 1939), withdrew it (in 1957) replaced it again (in 1965), and extended it to most lettings without resident landlords (in 1974). The last act in this long line is the Rent Act 1977 — a consolidating act — to which around 80,000 tenancies are still subject. The different rationales behind the various Acts all failed to halt the decline of the private sector from 90 per cent of total stock in 1914 to 11 per cent in 1981 and 7 per cent in 1991. However, subject to a very few exceptions, no new Rent Act tenancies have been created since 15 January 1989 and the changes made by the Housing Acts of 1988 and 1996 have led to a slight increase so that the private rented sector today accounts for around 10 per cent in Great Britain (Office of the Deputy Prime Minister, Housing Statistics 2003).
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 17. Private residential accommodation: long leases

Abstract
Long leases (ie those for a term certain exceeding twenty-one years) are usually outside the scope of the Rent Act 1977 and of the Housing Act 1988. Both Acts exclude from protection leases subject to a ‘low rent’ (s.5, 1977 Act; Schedule I, para. 3, 1988 Act) and because a long lease will normally be granted (and subsequently assigned) at a premium, the rent payable therefor will be typically much lower than that chargeable on lettings falling within Chapter 16. In addition, because long leases change hands for sums which reflect their market value, there is no restriction on premiums. Nor is there any rent control, although with the low rents involved this would anyway be unnecessary. Instead, the legislation concentrates on:
(a)
protecting tenants against exorbitant service charges;
 
(b)
giving security of tenure where long leases come to an end by effluxion of time. (It is worth noting however that in practice relatively few long leases expire of their own accord. Usually the tenant will have negotiated a new lease with the landlord before the expiry date or will have become statutorily entitled to extend the term of the tenancy or to purchase the landlord’s interest.)
 
(c)
enabling tenants to enforce the landlord’s management obligations by giving them rights of pre-emption, and powers of compulsory purchase and the appointment of a receiver;
 
(d)
giving tenants of flats the right to take over the management of the building in which their flats are situated without having to prove shortcomings on the part of the landlord and without having to pay him compensation;
 
(e)
giving tenants the opportunity of enlarging their interests either by acquiring a new and/or longer interest or by purchasing the freehold (a process known as enfranchisement).
 
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 18. Public sector residential accommodation

Abstract
Rented property in the public sector, like other types of rented property, has been subjected to considerable pressures over the decades. Its significance grew after the First World War when Lloyd George, the then Prime Minister, realised that one way of meeting his election pledge of ‘homes fit for heroes’ was to increase the stock of local authority accommodation. Between the First and Second World Wars housing was a political football kicked to and fro between the opposing parties. The Conservatives supported private enterprise and regarded state intervention merely as a temporary measure while Labour envisaged a permanent role for public housing but was hampered by a lack of political power and economic resources. Even so, there was a high output of new houses in both the private and public sectors and by 1938 local authorities owned 11 per cent of housing stock. Millions of residential properties in Great Britain were destroyed or damaged during the Second World War and, not surprisingly, new building had been at a virtual standstill. After 1945 both Labour and Conservative governments promoted the building of local authority housing (albeit with varying degrees of enthusiasm) and the sector grew every year until, by 1979, it accounted for 29 per cent of housing. By 2003 it had dropped to 11 per cent. The decline can be attributed to a number of factors. Local authority tenants have exercised their ‘right to buy’ (introduced by the Housing Act 1980), fewer local authority homes have built, and many authorities have transferred the whole or part of their housing stock to new owners — usually Registered Social Landlords (i.e. housing associations registered with the Housing Corporation).
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 19. Business tenancies

Abstract
Until the coming into force of the Landlord and Tenant Act 1954, Part II, business tenants mostly had no security of tenure. If the tenant had a periodic tenancy, it could be terminated by the landlord by notice to quit at common law, and the tenant would have to vacate when the notice expired. If the tenant had a fixed-term lease with no option to renew, the tenant could only hope that the landlord might agree to grant a new lease at the expiration of the contractual term. A business tenant obliged to leave might have to incur substantial expense in relocation, and it could suffer loss of both goodwill and the value of any improvements that it had made.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole

Chapter 20. Agricultural holdings

Abstract
The general law of landlord and tenant as set out in Part 1 of this book applies as much to agricultural tenancies as it does to the tenancies discussed in the previous four chapters. However, the nature of agricultural activities means that there has had to be some response to the particular problems arising from animal husbandry and crop rotation. Crops planted by one tenant may not ripen until after he has moved on, and might not ripen at all if there has been bad weather. Either way, the incoming tenant will have no choice but to put up with the crops which are in the ground, since it will almost certainly be too late to change them. Again, the configuration and productivity of a particular piece of land will be the result of many years of work including planning, planting, draining and fertilising. For centuries a mass of customary practices which varied from county to county (and sometimes varied within counties) governed the relationship between landowners and tenants of agricultural land. Custom and common law had their limitations, however: they did not compensate the outgoing tenant for any improvements, nor did they allow for removal of any fixtures that might have been installed. Further, given that most agricultural tenancies were yearly tenancies, terminable at common law by six months’ notice to quit, the tenant’s occupation of the land was far from secure. From 1875, therefore, legislation intervened, initially to provide for the payment of compensation to the outgoing tenant, then to extend length of notice, and finally (in 1947) to confer security of tenure.
Margaret Wilkie, Peter Luxton, Jill Morgan, Godfrey Cole
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