Agreements for lease

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What is a certificate of title?

A certificate of title (also known as a certificate on title) is a particular species of report on title.When solicitors are instructed to investigate...

Overreaching—sales by trustees of land

Broadly, the doctrine of overreaching enables purchasers (which includes tenants and mortgagees) in good faith for money or money’s worth to rely...

Constructive trusts

Millett LJ subdivided types of constructive trust into two categories, distinguishing between:•the constructive trust proper, where equity intervenes...

Title guarantee and covenants for title

On the disposition of a property (whether by way of conveyance, transfer or charge), the party making the disposition will normally provide a title...

Practice notes

Equitable mortgages and equitable charges—general principles and registered land

Nature of mortgages and chargesMortgages and charges are distinct forms of security. A mortgage can be legal or equitable and involves the transfer of...

9th Nov

Practice notes

Quistclose trusts

What is a Quistclose trust?A Quistclose trust is an example of an ‘automatic’ resulting trust, ie a trust which arises where property is transferred...

9th Nov

Practice notes

Consecrated ground and burial grounds—issues for developers

Consecrated land—Church of EnglandFor the purposes of this section of this Practice Note, consecrated land means any land or building which has been...

9th Nov

Practice notes

Without prejudice and subject to contract

Subject to contractIf a party who strikes a bargain wishes to make it clear that it does not intend to enter into a binding contract until a formal...

9th Nov

Practice notes

Headline rents

What is a headline rent?In a falling market, landlords frequently offer tenants financial inducements to take a lease in order to maintain the level...

9th Nov

Precedents

Specific clauses for transfers—indemnity covenant

Panel 11 (transfer of whole)/panel 12 (transfer of part)—Additional provisions1Definitions[Lease•the lease particulars of which are set out in...

9th Nov

Practice notes

Letter/certificate of non-crystallisation in property transactions

What is a letter of non-crystallisation?A letter of non-crystallisation is required by a buyer’s/lender’s solicitor to confirm that:•a floating charge...

9th Nov

Practice notes

Applying the proceeds of sale

Sale by a mortgagee destroys the equity of redemption in the mortgaged property. The sale defeats the rights of all subsequent incumbrancers, whose...

9th Nov

Practice notes

Rent suspension or cesser

Generally, the tenant remains liable for the rent even though the premises have become unusable. Consequently, leases normally contain a provision...

9th Nov

Practice notes

Insolvency—fixed charge receivership

Effect of appointmentA fixed charge receiver is appointed under a legal charge or mortgage and only has power to deal with and dispose of the charged...

9th Nov

Practice notes

Contract races

The Solicitors Regulation Authority’s (SRA) Handbook (SRA Handbook 2011) which contains the Solicitors Regulation Authority’s Code of Conduct (SRA...

9th Nov

In-house

Practice notes

Conditional contracts—property

Contracts are often drafted on the basis that a condition or conditions must be satisfied before completion takes place (a condition precedent)....

9th Nov

Practice notes

Easements—nature and characteristics

Nature of an easementAn easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of...

9th Nov

Precedents

Deed of release of covenants

This Deed is made on [date]Parties1[name of person releasing the covenants] [of [insert address] OR incorporated in England and Wales with company...

9th Nov

Practice notes

Enquiries before contract

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the COVID-19 outbreak....

9th Nov

Practice notes

Double funding

Brexit: The UK left the EU on 31 January 2020. This has implications for the schemes providing for agricultural subsidies in England and Wales, which...

9th Nov

Most recent Agreements for lease content

Practice notes

Agreements for lease with development obligations—information, site visits and inspection

The tenant will appoint its own surveyor and other consultants to monitor the construction works and to represent the tenant’s interest in relation to...

29th Nov

Practice notes

Agreements for lease with development obligations—collateral warranties and third party rights

An inherent defect may become apparent several years after the tenant has taken over the property. This may be long after:•the building contractor’s...

29th Nov

Practice notes

Termination for breach of property contract

Rescission can either mean a contract is discharged by breach, or that a contract is treated as if it never existed—known as rescission ab initio....

29th Nov

COVID-19

Practice notes

Agreements for lease with development obligations—conditions other than planning

A developer has a far greater prospect of securing both:•development finance from a funder to fund the costs of development works, and•a commitment...

29th Nov

Practice notes

When do you need an agreement for lease?

An agreement for lease is required where the landlord and tenant cannot enter immediately into the lease itself, but need to know that the other party...

29th Nov

Q&As

A freeholder enters into an agreement for lease (AFL) with a third party. The agreement for lease is expressed to be personal. The third party registers a unilateral notice. If the freeholder then sells the land to a purchaser, is the purchaser liable or would the third parties’ remedies only be against the original freeholder. Specific performance would presumably not be available as it is no longer possible and the third party could not force the purchaser to grant the lease?

We have assumed that:•the agreement for lease (AFL) is a new tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A...

29th Nov

Q&As

Should a prospective tenant protect its agreement for lease by registering a unilateral notice against the landlord’s title? What are the consequences if the tenant does not do so?

An agreement for lease is a contract relating to the grant of a lease and is commonly used where there are various matters that need to be dealt with...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 29th Nov

Q&As

Is it possible to assign the benefit of specific parts of a contract as opposed to the whole of it?

The starting point is that the benefit of a contract can be assigned to a third party. To this there are a number of immediate exceptions:•first if...

29th Nov

Q&As

Do you have a Precedent for use in a development sale contract for the assignment of copyright in the planning application plans by the buyer to the seller so that the seller can build the development if the buyer does not complete after planning permission is granted?

In this Q&A we have limited our research to cover copyright assignments and licences and clauses dealing with copyright assignment and licensing.An...

29th Nov

Q&As

Can an agreement for lease be amended to add another party to the contract. If so, can this be done by completing a deed of variation or is there another way?

An agreement for lease is required where the landlord and tenant cannot enter immediately into the lease itself, but need to know that the other party...

29th Nov

Q&As

A freeholder grants a lease to A, who sublets to B. Prior to the expiry of the headlease, the freeholder granted a new lease directly to B. That lease has now expired and B has vacated. Can the freeholder bring a dilapidations claim (1) against A under the headlease? (Or has the freeholder waived its right to recover dilapidations from A by entering into the direct lease with B?); (2) against B pursuant to the direct lease?

Much of the dilapidations claim relates to items installed by A before the grant of the sublease to B and which were not reinstated at the end of the...

29th Nov

Precedents

Agreement for lease (unconditional) incorporating the Standard Commercial Property Conditions (Third Edition — 2018 Revision)

date [date]Parties1[name of Landlord] [of OR incorporated in England and Wales with company registration number [number] whose registered office is...

29th Nov

Q&As

Do you have a Precedent for a clause in a lease requiring a tenant to bear uninsured losses?

We do not have a Precedent clause providing for a tenant to bear uninsured losses, but if uninsured damage is not excluded from the tenant's repairing...

29th Nov

Q&As

Is it usual for agreement for leases to be personal to the landlord and not assignable?

An agreement for lease is a contract and it will be freely assignable unless it contains an express prohibition on assignment. Most commercial...

29th Nov

Q&As

In circumstances where a tenant cannot attend a Practical Completion inspection under an agreement for lease due to coronavirus (COVID-19) (ie the relevant inspector on behalf of the tenant cannot physically attend), is it reasonable for the landlord to issue the PC certificate without the tenant in attendance? The tenant's attendance in not compulsory under the Agreement for Lease but it is invited to attend and therefore by implication if it is able to make representations, it should have attended. Or are there any circumstances where it could challenge the issue of the PC certificate because it was prevented from attending due to coronavirus?

It is not uncommon that a party will enter into an Agreement for Lease (AFL) in respect of a building under construction or to be constructed. This...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 29th Nov

COVID-19

Q&As

If the tenant of a lease granted five years ago, which provides for a specific permitted use (with a side letter accompanying it to modify the permitted use), intends to make alterations by way of licence to part only of the demised premises, which requires a change of use not permitted by the lease or the side letter, how should the change of use for part only of the demised premises be dealt with, and what (if any) effect will this have on the lease? Can a further side letter be entered into at this point?

For the purposes of this Q&A, we have assumed that the landlord is willing to permit the alterations and allow the change of use and is not looking to...

Produced in partnership with Kate Andrews of Hamlins 29th Nov

Q&As

If a tenancy ends (because a tenant has purchased the property under the Right to Buy Scheme) and the landlord does not remove fittings which are expressly excluded from the demise (note, not fixtures), can a tenant insist a landlord removes them?

Fittings (also known as chattels) do not form part of the land and will not be included in a sale, unless it has been expressly agreed otherwise.In...

29th Nov

Q&As

Where a protected business lease is in existence and an agreement to enter into a reversionary lease is entered into (presumably with the same tenant), does the statutory protection of the business lease fall away and if so: a) would this be when the agreement is entered into or on completion of the reversionary lease? b) can the reversionary lease be excluded from sections 24 to 28 of the Landlord and Tenant Act 1954 (LTA 1954) even if the original lease was protected? c) when would notices excluding LTA 1954, ss 24 to 28 need to be given? d) can the agreement for the reversionary lease be exchanged prior to expiry of the current protected lease?

Statutory protection of the existing leaseThe reversionary lease can be contracted out of the security of tenure provisions of the Landlord and Tenant...

29th Nov

Q&As

In the context of a put option, where notice to exercise the option has been served, the recipient of the notice has asked to delay completion and time is not of the essence, can a new completion date be agreed while preserving the right to serve a notice to complete in the future? If the party who served the notice does nothing (ie remains silence), can they then serve a notice to complete when they wish?

A put option is a contract giving a party the right if they elect to do so to sell an asset at a fixed price (the strike price) to a specified buyer...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 29th Nov

Q&As