Repairs and alterations

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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...

The Standard Conditions of Sale (5th edition: 2018 revision)—a guide to the main provisions

The Standard Conditions of Sale (SCS), currently in their 5th edition (2018 revision), are a set of standard conditions which are commonly...

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...

Authorised guarantee agreements

What is an authorised guarantee agreement (AGA)?Under an authorised guarantee agreement (AGA), an outgoing tenant guarantees some or all of the...

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

Standard Commercial Property Conditions (Second Edition)

The second edition of the Standard Commercial Property Conditions came into force on 1 June 2004 and these conditions are incorporated into many...

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

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

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

Oversailing

TrespassTrespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the airspace above it....

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

Q&As

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) automatically transfers any existing mortgages on a leasehold title when the lease is extended under LRHUDA 1993. Therefore it is not necessary to obtain the mortgage company's consent to the lease extension. However, if there is a mortgage on the landlord's title, does the landlord need to obtain consent or does LRHUDA 1993, s 58 also render obtaining consent unnecessary?

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) governs the position in respect of mortgages both of the...

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

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

Completion monies—the SCPCs

How should the money be transmitted?Most contracts relating to commercial property incorporate either the second or third editions of the Standard...

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

Practice notes

A review of Standard Commercial Property Conditions (Third Edition) and practical tips

The Third EditionThe third edition of the Standard Commercial Property Conditions was published on 27 April 2017. It is an update to Standard...

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

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

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 Repairs and alterations content

Practice notes

Communal heating network—landlord obligations

STOP PRESS: This Practice Note is currently being updated in light of the Heat Network (Metering and Billing) (Amendment) Regulations 2020, SI...

Produced in partnership with ELM Law 1st Dec

Q&As

If a landlord needs to take out a commercial loan in order to be able to carry out repair works following the end of a lease, can the cost of the loan or interest be passed on to the tenant in the dilapidations claim? The lease is silent.

If the landlord needs to borrow to carry out the works and intends to carry out those works then, in principle, notwithstanding there is no provision...

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

Q&As

If a long residential lease is silent as to the ownership of the windows, would the freeholder or leaseholder be responsible for their maintenance?

In this situation, there is also the third possibility that neither of them is responsible.To begin with, even if the word ‘window’ (or something...

Produced in partnership with Desmond Kilcoyne 29th Nov

Q&As

Can a landlord claim for damages in respect of wear and tear?

This will depend on whether there is an exception for fair wear and tear in the lease, and if so, how it is construed. In theory, an exception for...

29th Nov

Q&As

A tenant has carried out alterations without the landlord’s consent and now seeks to obtain retrospective consent. The landlord will grant a retrospective licence on onerous terms such as an increase in rent and payment of a premium. Otherwise, the landlord insists on the improvements being removed, despite the fact the improvements improve the letting value of the premises and they have suffered no loss. Can a landlord be held to be unreasonably withholding retrospective consent for alterations?

The answer on the contractual provisions in the tenancy agreement. Here it appears that consent needs to be obtained prior to the tenant carrying out...

Produced in partnership with Kate Andrews of Hamlins 29th Nov

Q&As

In a commercial lease where a tenant does work to upgrade the property, in what circumstances is the tenant able to get the benefit?

The Landlord and Tenant Act 1927 (LTA 1927) allows a tenant to serve notice on their landlord stating its intention to carry out specified...

29th Nov

Q&As

Can the purchaser of a commercial property serve a schedule of dilapidations on a tenant following completion, where the tenant has been in occupation for a number of years under successive leases, and the purchase price paid reflected the disrepair?

The first issue to consider is the wording of the repairing covenant. Typically, it might make different provision for different aspects of the...

29th Nov

Q&As

What is the position as to the demise/legal ownership of a building on renewal of a lease of bare land where the tenant subsequently erected a building at its own cost with landlord’s consent though this was not documented?

It is assumed that:•the lease was not a building lease, ie one under which the tenant was under an obligation to erect the building in question;•there...

Produced in partnership with Helen Galley of XXIV Old Buildings 29th Nov

Q&As

Can a tenant’s obligation to repair a track pursuant to a covenant contained in a lease be diminished or affected by the tenant’s infrequent use of the track, its partial adoption as a highway, or third party use of the track?

Case studyA lease of a telecoms mast granted in 1951 includes a covenant ‘to keep in repair’ the track leading to the mast. The track consists of part...

29th Nov

Q&As

Where there is no reinstatement provision in a lease, what is the position at the end of the term with regard to alterations carried out during the term? Can the landlord insist on a reinstatement provision in a licence for alterations which allows the landlord to serve a reinstatement notice in respect of the works carried out under the licence within a reasonable time after the expiry of the lease term, even though there is no reinstatement provision in the lease?

No reinstatement obligationIf there is no obligation to reinstate the demised premises, a lawful alteration becomes part of the premises. The tenant...

29th Nov

Q&As

Where a lease by renewal of an original lease requires the tenant (who is the original tenant) to remove ‘all alterations installed by the tenant’, would that apply to alterations made by the tenant under the original lease or only those made since the renewal lease?

The issue of alterations should not be overlooked at lease renewal. The premises may have been significantly altered. Unless the parties state...

Produced in partnership with David Nicholls of Landmark Chambers 29th Nov

Q&As

A residential flat lease stipulates that the tenant is not to alter the flat but may make internal non-structural alterations with landlord’s consent (not to be unreasonably withheld). The definition of premises/flat does not include reference to landlord's fixtures and fittings. Is the tenant able to replace the kitchen or bathroom in the flat without consent?

The answer to this Q&A will depend on whether the components of the kitchen and bathroom are fixtures or fittings, and, if they are the former,...

29th Nov

Q&As

Agents were contracted to manage a three bedroom residential property for 10 years. In breach of contract they failed to carry out quarterly inspections for the past four years in which time the tenants unlawfully sublet the house so that there were seven or eight people living there. Significant property damage, including to doors, has been caused along with large amounts of debris being left. The only evidence is a check out report. If the managing agents are found to be negligent or in breach of contract how will damages be assessed? Is there case law in respect of similar cases?

The managing agent in this case is the agent of the landlord even if the fees charged by the agent are recoverable from the tenants as part of the...

Produced in partnership with Helen Galley of XXIV Old Buildings 29th Nov

Q&As

What are a commercial tenant’s remedies where there are no obligations on the landlord in the lease for repair of the structure of the building?

In the absence of an express covenant, a landlord gives no warranty that the premises are or will remain physically fit for the use contemplated and...

29th Nov

Q&As

A tenant is in occupation under an implied tenancy at will with no previous written lease. Are there any implied terms in a commercial periodic tenancy in respect of the tenant’s obligation to repair and reinstate the premises? Is the position the same where the occupier has acquired a periodic tenancy?

A tenancy at will is a precarious right to occupy land. It can arise by implication where the parties have not expressly agreed that there should be a...

29th Nov

Q&As

The terms of a LTA 1954 renewal are in dispute. The tenant has been in occupation under two previous leases which provided that the tenant must on lease expiry reinstate alterations made during the term. If a similar term is included in the renewal lease, will it only cover alterations made during the term of the renewal lease or will it cover alterations made previously?

If there is no obligation to reinstate the demised premises, a lawful alteration becomes part of the premises and the tenant cannot be made to...

29th Nov

Precedents

Early access licence

Date: [insert date of licence in its full format DD-Month-Year]Parties1[insert name of Licensor] [of [insert address] OR incorporated in England and...

29th Nov

Q&As

What is the difference between 'rooflights' and 'outer roof sheets' and is there authority for either landlords or tenants previously been held responsible for their repair?

What is the difference between 'rooflights' and 'outer roof sheets'?A roof light is a window panel built into a roof to admit light.An outer roof...

Produced in partnership with Elizabeth England of 42 Bedford Row 29th Nov

Q&As

If the head landlord/freeholder of a commercial subtenant of part of a building is failing to remedy leaks in the ceiling, where the head-lease (made between the head landlord and the head lessee) expressly states to 'keep the main walls and roofs, foundations and all conduits serving the premises in common with other parts of the Landlord's Property and other exterior or structure parts of the building… in good and substantial repair and as to the external parts thereof in good decorative condition…', what can the sub-tenant do to enforce this covenant obligation?

The sub-lessee’s difficulty is that there is privity of estate between the freeholder and the head lessee, and between the head lessee and the...

Produced in partnership with Howard Smith of Radcliffe Chambers 29th Nov

Q&As

A tenant has taken an assignment of a commercial property in which there are problems with the electrical cabling. To what extent is the landlord/tenant or assignor liable for rectifying the problems? The tenant is required to comply with statutory requirements and there is no express landlord obligation to repair the electrical cabling in the lease.

Allocation of responsibility for repairThe responsibility for maintenance and repair will depend on the terms of the lease and, most importantly, the...

29th Nov