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Where a tenancy agreement includes a clause that states, “any notices served by the landlord shall be sufficiently served if sent by standard 1st or 2nd class post or delivered by hand to the tenant at the premises or the last known address of the tenant or left addressed to the tenant at the premises”, will personal service on New Year’s Day be deemed as effective service?
Q&As
What is service? Service is the process by which one party gives a document to the other. In order to provide certainty, and a modicum of business efficacy, a system of ‘deemed’ (or, assumed) service has developed. This is where the serving party can say that they have complied with a service requirement, and the document is ‘deemed’ sufficiently served even if the receiving party never actually received it. Actual service The whole point of ‘service’ is to ensure that a document is received. If a party can prove actual service then this is always sufficient. Personal service is the most reliable means of proving actual service. Personal service means that a person
Where a tenancy agreement was not executed as a deed and the initial term is for a period of more than three years (a period of five years and thereafter continuing until terminated), what is the nature of the tenancy and would an attempt to contract out such a tenancy under the Landlord and Tenant Act 1954 be valid?
Q&As
It is well understood that section 52(1) of the Law of Property Act 1925 (LPA 1925) requires that all transfers of land must be by way of deed subject to certain limited exceptions in LPA 1925, s 52(2). A further exception is created by way of LPA 1925, s 54 as it allows for the ‘Creation of interests in land by parol’. This section reads: ‘(1) All interests in land created by parol and not put in writing and signed by the persons so creating the same, or by their agents thereunto lawfully authorised in writing, have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. (2) Nothing in the foregoing provisions
Where a tenancy relates solely to farm lands and buildings, but not dwellings, is notice required, where there has been a change of landlord, under the Agricultural Holdings Act 1986?
Q&As
Section 3(1) of the Landlord and Tenant Act 1985 (LTA 1985) provides that if the interest of the landlord under a tenancy of a dwelling is assigned, the new landlord must give notice in writing to the tenant of the assignment. Failure to comply with this requirement within the required time limit is an offence—LTA 1985, s 3(3). 'Dwelling' is defined as 'a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it'—LTA 1985, s 38. Therefore,
Where a tenant (A) makes an application for a determination of service charge to the First-tier Tribunal, but the tenant then sells the leasehold to a new tenant (B), does tenant A lose locus standi to bring the claim? If so, can this be remedied by an assignment of the benefit of the claim?
Q&As
We have assumed that: • the query relates to a residential service charge determination • the assignment has been registered and accordingly the new tenant holds the legal title Correct party to determination The relevant party to the claim will depend on the nature of the determination being sought and the facts and circumstances in respect of the lease in question. For example, if the determination relates to the liability to pay a residential service charge under section 27A of the Landlord and Tenant Act 1985 (see Practice Note: Residential service charges—disputes and procedures) under a ‘new tenancy’ (ie the Landlord and Tenant
Where a tenant (T1) and its guarantor (G) under a lease enter into a deed of release, releasing G from its liabilities under the lease and TI subsequently assigns the lease to G (so becoming T2), would the assignment to T2 be rendered void by the anti-avoidance provisions of the Landlord and Tenant (Covenants) Act 1995 following EMI Group Ltd v O & H Q1 Ltd [2016] EWHC 529 (Ch)?
Q&As
Section 5(2)(a) of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) provides that if: ‘…a tenant assigns the whole of the premises demised to him,...he is released from the tenant covenants of the tenancy...as from the assignment.’ LT(C)A 1995, s 24(2) addresses the position of guarantors: ‘…[where] immediately before the release another person is bound by a covenant of the tenancy imposing any liability or penalty in the event of a failure to comply with that tenant covenant, then, as from the release of the tenant, that other person is released from the covenant...to the same extent as the tenant is released from that tenant covenant.’ In
Where a tenant (dental practice) has a lease which is a residential lease (save that the user provision allows for residential or dental use), given that the property is occupied for business use even though it is a converted flat above shop, could the statutory provisions under LRHUDA 1993 apply, so that a 99-year extension can be sought? Also would the tenant benefit from security of tenure on the expiry of the term?
Q&As
There are two pieces of legislation referred to in this Q&A: • the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993), and • the Landlord and Tenant Act 1954 (LTA 1954) Chapter II of LRHUDA 1993 confers on the tenant of a flat the right to acquire a new lease of the flat on payment of a premium. The right to acquire a new lease is an alternative to the right to collective enfranchisement, which is provided for by Chapter I of LRHUDA 1993. LTA 1954, Pt II provides those tenants who occupy a property for the purposes of a business with security of
Where a tenant acquires the freehold title, and so is the proprietor of both the freehold and leasehold title, but does not apply to merge the titles, can the tenant sell the freehold to a third party subject to the lease, or is the lease terminated as a result of merger? If no rent was paid during the period that the tenant was both landlord and tenant, on the sale of the freehold, can the new freeholder then take the benefit of the tenant’s covenants?
Q&As
A lease may terminate as a result of merger when both the lease and the reversion on that lease become vested in the same person (Rye v Rye). However, the merger does not happen automatically. This is because in equity, a merger is a matter of intention. See Commentary: Merger of estates and charges: Halsbury’s Laws of England [201]–[206] for further
Where a tenant and landlord agree that the tenant is entitled to carry out substantial structural alterations to a property and will not be required to reinstate them but will not make any claim for improvement, is it competent to record such agreement in a licence for alterations?
Q&As
Compensation for improvements carried out by a tenant is provided for in Part I of the Landlord and Tenant Act 1927 (LTA 1927), as modified by Part III of the Landlord and Tenant Act 1954. The provisions apply to premises that are held under a lease and used wholly or partly
Where a tenant applies for consent to assign a 'new' lease, which cannot be unreasonably withheld, and a proposed assignee has better financial standing than the tenant, would it be reasonable for a landlord to demand an authorised guarantee agreement (AGA) on the basis that this will then enable it to request a GAGA from the existing tenant's guarantor? Or does the landlord need to consider the current tenant and the potential assignee alone when making its decision? The lease contains a right to request an AGA if reasonable under section 19(1A) of the Landlord and Tenant Act 1927 and the landlord is keen to retain the guarantor (which has a very strong covenant strength) via a GAGA.
Q&As
Section 5(2)(a) of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) provides that ‘a tenant assigns the whole of the premises demised to him,...he is released from the tenant covenants of the tenancy...as from the assignment'. Accordingly, provided the tenant does not assign in breach of covenant, on assignment: • the tenant will be released from future performance of the tenant
Where a tenant assigns a lease without an authorised guarantee agreement, and also agrees with the landlord that the tenant is released from the tenant covenants by virtue of the Landlord and Tenant (Covenants) Act 1995—(a) is the tenant released from all liabilities, and (b) when does the release take effect—at completion or registration?
Q&As
This Q&A assumes that the lease is a ‘new’ lease for the purpose of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) in accordance with the date of grant Under LT(C)A 1995, the liability of a tenant for tenant covenants under a ‘new’ lease ends when the lease is assigned. That general rule is subject to exceptions if the assignment is an ‘excluded assignment’ or if the tenant enters into a (lawfully imposed) authorised guarantee agreement. This is explained in Practice Note: Lease covenants—liability after assignment of a lease or
Where a tenant authorises its solicitor to swear a statutory declaration to exclude Part II of the Landlord and Tenant Act 1954, is there a required form of written authority, or, for example, would an email suffice? Can a trainee solicitor be so authorised?
Q&As
It is common for the tenant's solicitor to swear the statutory declaration on the tenant's behalf. A tenant’s solicitor who proposes to do this should obtain the tenant’s written authorisation to do so first. In these circumstances, the landlord's solicitor should require the tenant's solicitor to produce evidence of the tenant's authorisation. There is no prescribed form of written authority. However, both the tenant’s solicitor and the landlord’s
Where a tenant company has been dissolved and the lease is subsequently disclaimed by the Crown, how can the landlord recover possession from a director of the tenant company who has remained in occupation? Can the landlord claim mesne profit for the director’s continued occupation and if so, would this be from the date of dissolution or disclaimer?
Q&As
When a company is dissolved, any property which was beneficially owned by it prior to dissolution will revert to the Crown as bona vacantia pursuant to section 1012 of the Companies Act 2006 (CA 2006). Once property is so vested in the Crown, the Crown has a statutory right to disclaim an asset, pursuant to CA 2006, s 1013. The usual reason for the Crown to disclaim property is because there are risks or liabilities associated with it, or it would not prove cost effective to sell. It is common practice for the Crown to disclaim the tenant interest in a commercial