Rent and rent review

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Precedents

Q&As

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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...

Resulting trusts

Resulting trusts represent one of the three types of trust which do not require to be declared or evidenced in writing. The others are constructive...

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...

Practice notes

Benevolent funds

A benevolent fund is an institution, including a body of trustees, which holds funds on trust for the purpose of relieving poverty amongst a defined...

9th Nov

Practice notes

Manorial rights

Manorial rights are relics of the feudal system of land tenure. They can still exist in relation to land that:•is former copyhold land, or•was...

9th Nov

Practice notes

Underletting at less than the passing or market rent

When property markets suffer a downturn, commercial tenants with properties that are surplus to requirements face significant difficulties in...

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

Derogation from grant and the covenant for quiet enjoyment

The rule against derogation from grant applies in addition to any obligation of quiet enjoyment. It is not excluded by an express covenant for quiet...

9th Nov

Practice notes

Insurance—non-vitiation (non-invalidation) clauses

Vitiation of an insurance policyAn insurance policy may be vitiated (or invalidated) if the insured:•misrepresents or fails to disclose any material...

9th Nov

In-house

Practice notes

Easements—actionable interference

Wrongful interference with an easement is a private nuisance. The existence of the easement must be established for a claim to succeed.Not every...

9th Nov

Precedents

Rent authority letter—commercial property

[To be printed on Landlord’s letterheaded paper]Our Ref:Date:To: [insert name of Tenant]From: [insert name of previous Landlord] [of [insert address]...

9th Nov

Precedents

Deed of grant of easements

This Deed is made on [insert date]PARTIES1[insert name of the owner of the Servient Land] [ of [insert address] OR incorporated in England and Wales...

9th Nov

Practice notes

Fixtures and fittings

When transferring an interest in land, any fixtures form part of the land and are transferred with it, unless there is express provision to the...

9th Nov

Practice notes

Concurrent and reversionary leases

There can be only one lease at a time giving a right to possession and occupation of property. Consequently, if a landlord subsequently grants a lease...

9th Nov

Precedents

Transfer of part

Transfer of partPrecedent transferAn adaptable Word version of the precedent form TP1 can be downloaded, saved or printed from this link:Drafting...

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

Precedents

Rent Review Memorandum

Rent Review MemorandumLandlord•[insert full name of Landlord] [of [insert address] OR incorporated in England and Wales with company registration...

9th Nov

Precedents

Disclosable overriding interests questionnaire

You are applying for registration of [insert details of property] at HM Land Registry and as part of that application you must disclose any overriding...

9th Nov

Practice notes

Differences—joint insured and noting

Joint insuranceJoint insurance arises where two or more people insure separate insurable interests in the same property with the same insurer under a...

9th Nov

Most recent Rent and rent review content

Q&As

A tenant serves its break notice too late to operate the break option and therefore the lease continues. The rent review date in the lease is the same date as the date the tenant could have exercised the break, but the rent review clause provides that time is not of the essence. The landlord has not served a notice to trigger the rent review. Does the interaction between the two clauses (ie the right to break or continue with a new rent) mean that time is of the essence in relation to the rent review, even though it is stated not to be?

The entitlement to determine a lease by the service of a break notice is an option to determine and so will be construed strictly. Service even one...

Produced in partnership with Helen Galley of XXIV Old Buildings 30th Nov

Q&As

What steps should a landlord consider when drafting a commercial or mixed-use lease in the light of the new CRAR procedure?

What is CRAR?As of 6 April 2014, the old common law remedy of distress for rent was replaced by the new Commercial Rent Arrears Recovery...

29th Nov

Practice notes

Claims for use and occupation, mesne profits, double rent and double value

This Practice Note provides guidance on claims for ‘use and occupation’ or mesne profits, and how and when double rent or double value can be...

29th Nov

Practice notes

Commercial rent arrears recovery (CRAR)

Coronavirus (COVID-19): During the current pandemic, legislation and changes to practice and procedure in the courts and tribunals have been...

29th Nov

COVID-19

Q&As

Where a tenant has assigned a lease and the outgoing tenant gives an authorised guarantee agreement (AGA), must the outgoing tenant as guarantor be a party to any rent review memorandum which may be entered into in order for any default on the rent to be enforceable as against them?

AGAAn authorised guarantee agreement (AGA) is a form of guarantee given by an outgoing tenant who guarantees some or all of the obligations of the...

29th Nov

Q&As

What is the difference between the non-annual and annual cap and collar rent review draft provisions?

We refer you to the associated drafting note of the Precedent: Indexed rent review—annual basis with optional cap and collar.As per the drafting...

29th Nov

Q&As

Where there are several parties (eg former tenants, guarantors) that a landlord may pursue for rent arrears, can the landlord choose which party to pursue for payment?

A landlord who has the option to pursue a number of different parties in respect of rent arrears may pursue all of these parties for the same sums,...

29th Nov

Q&As

Where a rent review date is an anniversary of the term commencement date, which was 29 February in a leap year, how will the review date be interpreted?

Whether you are acting for either of the original landlord or tenant, you may consider that the simplest and most cost effective way to proceed is for...

29th Nov

Q&As

Can the landlord pursue one of the tenants for rent arrears attributable to the other part of the premises?

Case studyA tenant assigns part of a lease and agrees an apportionment of the rent with the assignee. The assignor obtains the landlord's approval to...

29th Nov

Q&As

Does the Limitation Act 1980 apply to service charge payment obligations imposed?

This question raises the issue of the period after which a defendant to proceedings for recovery of service charges under a lease can rely upon a...

29th Nov

Q&As

Where a farm business tenancy (FBT) was granted in 2002, but no rent has been collected for a number of years (landlord has not chased, tenant hasn't offered), can the landlord demand payment of the outstanding rent or would they be statute barred from collecting rent which has been outstanding for more than six years? Alternatively, would a longer period be applicable as the lease was executed as a deed?

Please see section 19 of the Limitation Act 1980 which explains that:'No action shall be brought, [and the power conferred by section 72(1) of the...

29th Nov

Q&As

A landlord, whose tenant is in arrears, has the benefit of an authorised guarantee agreement from a previous tenant, and a guarantor for the current tenant. Can a section 17 notice be served on the former tenant for the arrears that fell due within the last six months and the guarantor be required to pay the other sums due? Is there any similar six-month limitation period for claims against the guarantor? Does it just depend on covenant strength as to who the landlord attempts to recover the arrears from?

By section 16 of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995), where a tenant is released from a tenant covenant by virtue of the Act...

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

Q&As

A commercial lease contains a market standard rent review clause. The parties agree the reviewed rent but the guarantor to the lease does not sign the rent review memorandum. It is signed by the landlord and tenant. What are the implications of the guarantor not signing the memorandum?

The purpose of a rent review memorandum is to record the fact that a rent review has taken place, and its outcome. The lease is likely to prescribe...

29th Nov

Q&As

In a lease where the permitted use is B1 offices and where the tenant is using the premises as a workshop, on rent review, would the valuer value the premises as an office (for a higher rent) rather than the workshop as being used?

The starting point is to consider what the user provision is under the hypothetical lease in the rent review clause. The hypothetical lease might be...

29th Nov

Q&As

Can the commercial rent recovery arrears procedure under the Tribunals, Courts and Enforcement Act 2007, section 81 be used where the occupier is a licensee rather than a subtenant? If not is there another way to ensure that the licensee pays rent to the landlord direct? Also, must a section 81 notice be served by an enforcement agent?

We refer you to: Head landlord’s notice to subtenant to pay rent to head landlord direct—commercial rent arrears recovery (‘CRAR’): Encyclopaedia of...

29th Nov

Q&As

Is it correct that CRAR under the Tribunals, Courts and Enforcement Act 2007 is not enforceable against the Crown?

It is correct that commercial rent arrears recovery (CRAR) under the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is not enforceable against...

Produced in partnership with Carl Fain of Tanfield Chambers 29th Nov

Q&As

Where a residential tenant has been paying a lower rent than is provided for in its lease for eight years, can the landlord now recover the shortfall rent for the last eight years or is it barred from doing so and if so when did it become statute barred? Is the position any different for a commercial tenant?

It is assumed that no estoppel has arisen by virtue of the landlord making some form of representation to the effect that the lesser sum only is...

29th Nov

Q&As

When is rent payable?

General principlesA lease should fix the periods when the rent is to be paid and specify the days on which the payments are to be made and the day for...

29th Nov

Q&As

Is there any limitation period for claiming rent arrears using the CRAR procedure?

The Commercial Rent Arrears Recovery (‘CRAR’) ProcedurePart 3 and Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) repealed...

Produced in partnership with David Sharpe of 12 King's Bench Walk Chambers 29th Nov

Q&As

Does the 18-month limitation apply if insurance is expressly reserved as rent in a residential long lease or is it six or 12 years?

The 18-month limitation period in section 20B of the Landlord and Tenant Act 1985 (LTA 1985) does apply to insurance even if it is expressly reserved...

Produced in partnership with Carl Fain of Tanfield Chambers 29th Nov