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If a judgment is against ‘a firm’ rather than specific individuals, what steps do the claimants need to take (if any) before they can commence enforcement action against individual partners of the firm? Can you enforce the terms of a Tomlin Order without first securing judgment under the ‘liberty to apply’ provisions?’
Q&As
What steps must the claimant take before commencing enforcement action against individual partners? For the sake of this Q and A, reference to a ‘firm’ is to a partnership (and not, for example, to an LLP) and the relevant partners are assumed to have been ordinarily resident in the jurisdiction at the material time. The judgment debtor is the person against whom a judgment or order was given or made (CPR 70.1(2)). In most cases, the judgment debtor will be the party/ies named on the claim form. In the case of partnerships, the claim is against those who were partners at the time the cause of action accrued (CPR PD 7A, paras 5A.1–5B.3). Enforcement against partnerships is set out in CPR PD 70A, para 6A. In essence, where
If a junior employee follows instructions from a senior employee and by following those instructions they commit an act of misconduct, can the junior employee claim a defence that they were following reasonable management orders?
Q&As
The principal aim of conduct management is to ensure that employees behave in a reasonable manner in the workplace. If employers manage their employees well, the employees will be aware of: • the standard of behaviour that is expected of them • what behaviour will constitute misconduct and/or gross misconduct • what disciplinary rules apply to them In addition, if an employee's conduct is managed well, it should assist in defending a claim of unfair dismissal in the event that they are ultimately dismissed for misconduct. An employee is under a general obligation to follow lawful instructions given by their employer. The scope of the employer's powers and the employee's obligations will usually be set out in a written statement of terms and conditions or other contractual documentation. However, there may also be unwritten duties arising from custom and practice. See for example paragraph
If a jurisdiction outside the UK allows for the formal adoption of an adult and the legal formalities for adoption in that jurisdiction have been followed to adopt that adult, would that adopted individual be considered a child when drafting a Will or would the beneficiaries need to be specifically named?
Q&As
Various jurisdictions outside of the UK recognise the concept of adult adoption. There are a number of reasons why adult adoption might be thought to be desirable, including regularising a relationship (such as with a stepfather), or to ensure status in terms of inheritance, particularly in those jurisdictions that prescribe the division of estates after death. Adult adoption is not permitted in the UK. Section 47(9) of the Adoption and Children Act 2002 (ACA 2002) provides that an adoption order may not be made in relation to a person who has attained the age of 19 years. An application for an adoption order can only be made if the person to be adopted has not attained the age of 18 years
If a landlord and tenant of a Rent Act 1977 tenancy are in agreement that the tenant will move from one flat to another with the lease of the new flat also being a protected tenancy, how could this lawfully be achieved and is a court order necessary? Would it be lawful to enter into an agreement to surrender the lease of the one flat in return for the simultaneous grant of a lease pursuant to section 34(1)(b) of the Housing Act 1988 of the new flat?
Q&As
Since the implementation of the Housing Act 1988 (HA 1988) save in specific exceptional circumstances, it is no longer possible to grant or otherwise create a protected tenancy, ie one to which the security of tenure and restricted rent provisions of the Rent Act 1977 (RA 1977) apply. As indicated, however, there are certain limited exceptions, and there are two which could assist in this case. The tenant is protected by RA 1977, but it is extremely likely that the tenant is in fact a statutory tenant, ie has continued
If a landlord breaches a commercial tenant’s quiet enjoyment covenant, what is the effect on the tenant’s obligation to pay rent?
Q&As
A breach of a landlord’s covenant for quiet enjoyment will entitle the tenant to damages. The measure of damages is discussed in Commentaries: Remedies :Hill and Redman’s Law of Landlord and Tenant [2987] and Measure of Damages: Halsbury’s Laws of England [447]. While the obligation to pay rent is not directly altered by a breach of the covenant (except in the unusual case that this were
If a landlord cannot be certain of the date on which an implied annual periodic commenced (and therefore, cannot precisely determine the end date for the notice to quit), how can the landlord terminate the tenancy?
Q&As
Expiry dates for notices to quit For a yearly tenancy at common law the requisite notice period for a notice to quit is half a year (Parker d. Walker v Constable (1769) 3 Wils. K.B. 25 (not reported by LexisNexis®); Doe d. Clarke v. Smaridge (1845) 7 Q.B. 957 (not reported by LexisNexis®); Doe d. Plumer v. Mainby (1847) 10 Q.B, 473) (not reported by LexisNexis®). A valid notice to quit must expire either on the last day of a period or the first day of a period Crate v Miller. See Practice Note: Break clauses and notices—exercising breaks and conditions precedent. Saving clauses Where the landlord is uncertain of the last day or, as
If a landlord does not have a copy of the section 21 notice it has served, can the landlord obtain a possession order through accelerated or standard possession proceedings?
Q&As
A section 21 notice is a notice given under section 21 of the Housing Act 1988 (HA 1988) and operates, subject to the various requirements of HA 1988, to bring to an end an assured shorthold tenancy (AST). So long as the necessary formalities are complied with, service of a section 21 notice gives the landlord the ability to obtain an order for possession outright. It is, therefore, not necessary to prove that one of the specified grounds relating to possession under the section 8 notice procedure (HA 1988) has been made out. HA 1988, s 21(1) and (4) (the latter relating to periodic tenancies) each provide that a court shall make an order for possession if it is satisfied that
If a landlord does not know when the periods of a lease start and end (there is no formal documentation for the lease and the landlord has recently acquired the reversion) how can they determine the date required to serve a valid section 25 notice?
Q&As
A landlord wishing to obtain information in order to serve a notice under section 25 of the Landlord and Tenant Act 1954 (LTA 1954) has various options. The terms (including the periods) of a tenancy will be a matter for evidence. Assuming that there is no formal documentation, the landlord may wish to explore: • whether other documents are available, such as records of rent receipts • whether the tenant or the landlord’s predecessor in title is willing to provide information, and • serving
If a landlord enters into a joint assured shorthold tenancy fixed-term tenancy agreement with three tenants and rent payable on the face of the contract as 'yearly' (eg rent for the 'term' (of 12 months) will be £X), will the tenancy continue on a month-by-month periodic tenancy on the expiration of the fixed term? If one of the tenants vacates the property and a new tenant takes their place, are they still bound by the terms of the tenancy agreement?
Q&As
This Q&A considers: 1) If a landlord enters into a joint assured shorthold tenancy (AST) fixed-term tenancy agreement with three tenants and rent payable on the face of the contract as 'yearly' (eg rent for the 'term' (of 12 months) will be £X), will the tenancy continue on a month-by-month periodic tenancy on the expiration of the fixed term? and 2) If one of the tenants vacates the property and a new tenant takes their place, are they still bound by the terms of the tenancy agreement? These two questions raise the situation which often arises when a fixed-term
If a landlord failed to provide its tenant with a gas safety certificate before the tenant went into occupation of the property, is the landlord prevented from serving a valid section 21 notice?
Q&As
It is assumed that the tenancy was granted on or after 1 October 2015 (and is not a statutory periodic tenancy that came into being on or after 1 October 2015 at the end of an assured shorthold tenancy (AST) granted before that date). Under the section 21A of the Housing Act 1988 (HA 1988) and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, SI 2015/1646, reg 2, a section 21 notice cannot be served where the landlord is in breach of the prescribed requirement
If a landlord failed to serve a counter notice to their tenant's section 42 notice (under the Leasehold Reform Housing and Development Act 1993), and is proceeding to grant the lease on the notice terms, can the tenant insist the landlord waives its own legal and valuation costs and also pays for the tenant's costs?
Q&As
Where a tenant serves a notice under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993), the landlord must serve any counter-notice within the permitted timescale. If it fails to do so, there are few options available and the tenant can apply to the court for an order for the grant of a new lease on the terms set out in the section 42 notice. See Q&A: Following receipt of a section 42 notice for a lease extension, what options does a landlord have if he/she has failed to serve a section 45 notice within the required time frame? The tenant’s
If a landlord fails to comply with the requirement, of section 21 of the Landlord and Tenant Act 1985, to provide a written summary of the relevant costs, is the leaseholder entitled to lay information or make complaint at the magistrates court to prosecute the landlord?
Q&As
Section 21 of the Landlord and Tenant Act 1985 (LTA 1985) allows a tenant to request a written summary of service charge costs incurred over the previous 12 months from its landlord. A failure to comply with such a request within one month without reasonable excuse is a summary offence, punishable on conviction by a fine (LTA 1985, s 25). In the case of Morshead Mansions v Di