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Where the contractual term of a business lease has expired but the tenant has continued to occupy and pay the yearly rent in quarterly instalments, does the tenant occupy on a periodic lease? What notice period should be given and is it too late to give notice where the anniversary of the lease term end date is in January? Can the lease be terminated instead by agreement by a deed of surrender and if so, are there any specific precautions which should be taken?
Q&As
For the purposes of this Q&A, we have assumed that this is a lease to which the Landlord and Tenant Act 1954 (LTA 1954) applies, that the lease has not been contracted out of the provisions of LTA 1954. If the lease is contracted out of the provisions of LTA 1954 then the answer to this question would be different (ie rather than being a statutory continuation tenancy within LTA 1954, there would be a periodic tenancy within LTA 1954, in respect of which the notice procedure will be different—we have covered this briefly
Where the contractual term of a protected business lease has expired and the tenant is holding over, can the tenant serve a section 26 request if the landlord has started forfeiture proceedings?
Q&As
Part II of the Landlord and Tenant Act 1954 (LTA 1954) provides for security of tenure in respect of business premises that fall within its ambit. The Act continues a qualifying business tenancy past the date which, but for the Act, it would have expired by effluxion of time (LTA 1954, s 24(1)). The tenancy can be brought to an end by notice served by either the landlord or the tenant (under LTA 1954, s 25 and 27 respectively) and either party may apply to the court for the grant of
Where the court has determined that the tenants of a block of flats have the right to collective enfranchisement, but the transfer of the freehold has not yet been completed and the non-participating tenant has not served a notice under LRHUDA 1993, s 42 can the outgoing freehold owner extend a non-participating tenant's lease by agreement?
Q&As
Section 54 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) states: • 'If, at the time when the tenant's notice is given— (a) a notice has been given under section 13 with respect to any premises containing the tenant's flat, and (b) the relevant claim under Chapter I is still current, the
Where the court has made a maintenance order for the benefit of a child, and one party’s financial circumstances change, should that party make an application to vary the order downwards rather than simply vary it themselves? What effect would such a scenario have on future enforcement proceedings as to unpaid maintenance?
Q&As
The courts have limited jurisdiction in relation to child maintenance and are only able to make orders for child maintenance in certain circumstances, such as: • the child maintenance order is made by consent • the Child Maintenance Service (CMS) does not have jurisdiction in that particular case (for example jurisdictional issues due to a parent living outside the UK) • it is one of a prescribed type of order, such as a top-up maintenance order See Practice Note: Child maintenance and financial provision—spouses and civil partners. If the parties in the scenario of this Q&A agreed to incorporate a child maintenance provision in their final order within financial remedy proceedings, once that order has been in force for more than one year (and
Where the court has ordered a defendant entitlement to enter judgment on its counterclaim following strike out of the claimant’s claim for non-compliance with directions, how does the defendant seek recovery of its costs (of defending the claim and bringing the counterclaim) in excess of fixed costs, incurred to date?
Q&As
The Q&A does not specify whether the proceedings are subject to the fixed costs regime, or whether the case has been allocated to a different track. Different tracks have different costs rules. In particular, whereas the usual rules about recovering costs apply on the fast track (for example, the ‘loser pays’ principle, and the court’s assessment of reasonableness and proportionality), costs recovery is likely to be limited. In addition, in fast track cases, recoverable trial costs are very limited (CPR 28.2(5)). Given that there should be no difficulty in recovery of costs in excess of fixed costs for a claim to be allocated to the multi-track, it is assumed that the proceedings in this Q&A are allocated to the fast track. The fixed costs regime in CPR 45 applies
Where the court has ordered a transfer of equity of a property from the joint names of the parties into one party’s sole name and the transfer has been completed following enforcement proceedings, what is the procedure to get a party to leave the property if they will not vacate it voluntarily?
Q&As
Provided that a property adjustment order includes an order for possession, it may be enforced by a writ or warrant for possession of land. In Larkman v Lindsell the house was in the husband’s sole name, and it was determined that the wife’s beneficial interest in that property was small. The court made an order that the wife ‘do vacate
Where the court has ordered the defendant to pay the costs of an application, to be summarily assessed, do these costs need to be added into the costs budget as estimated or incurred costs?
Q&As
It is assumed the costs of the interim application have been summarily assessed and that no further costs in respect of that application are to be incurred. There is no clear answer to this question in either the Rules/Practice Direction or the Precedent H Guidance. However, as a matter of analysis, it seems to be the case that these costs should not be claimed in a budget at all. Interim applications do not form part of any of the ‘main’ phases
Where the court has struck out a claim for failure to pay the listing fee, is failure to pay a listing fee trivial if relief from sanctions is sought, and where the strike out order is silent as to costs, is the claimant automatically liable to pay the defendant’s costs?
Q&As
This Q&A assumes that the court has served a notice requiring the hearing fee to be paid by a specified date, failing which the claim will be automatically be struck out without further order of the court and the claimant will be liable for the costs that the defendant has incurred. CPR 3.7 provides that, where the claimant has not paid a hearing fee, the court will serve a notice on the claimant requiring payment of the fee by a specified date, failing which: • the claim will automatically be struck out without further order of the court, and • the claimant will be liable for the costs that the defendant has incurred unless the court orders otherwise CPR 44.9 provides that, where a right
Where the court makes an order for a child to be assessed in care proceedings under section 38(6) of the Children Act 1989, can it also direct that the assessment is followed by a programme of therapy?
Q&As
At an interim hearing the court can direct or prohibit the medical or psychiatric examination of the child, or other assessment such as a social work assessment, under section 38(6) of the Children Act 1989 (ChA 1989) if necessary to assist it in resolving the proceedings justly. Such a direction is within the ambit of the court’s case management powers and a matter of judicial discretion (see Re T (residential parenting assessment)). In all family cases, including care proceedings, the court’s powers are subject to the overriding objective of ‘enabling the court to deal with cases justly, having regard to the welfare issues involved’, as set out in the Family Procedure Rules 2010, SI 2010/2955, Pt 1. The court must seek to give effect to this objective when exercising
Where the court makes an order for costs on divorce, when will the order be payable? Is payment of the order for costs deferred until the decree absolute or the final order?
Q&As
The Family Procedure Rules 2010 (FPR 2010), SI 2010/2955 are silent as to the exact date for payment of a costs order in relation to an application for a matrimonial order (and there does not appear to be any case law in this regard), however FPR 2010, SI 2010/2955, 28.2 provides for the application of certain parts of the Civil Procedure rules 1998 (CPR 1998), SI 1998/3132 to family proceedings. Subject to certain modifications and exemptions, the costs provisions of CPR 44, CPR 47 and CPR 48 apply to costs in family
Where the court makes an order for costs under section 19 of the Prosecution of Offences Act 1985 against a private prosecutor, what is the process of enforcement and how does the successful defendant recover the costs from the prosecutor where they fail to pay as ordered?
Q&As
A costs order made by the magistrates’ court under section 19 of the Prosecution of Offences Act 1985 (POA 1985) is enforceable as a civil debt, section 41(2), Schedule 9 Part II, paragraph 13 to the Administration of Justice Act 1970 (AJA 1970). POA 1985, s 19 provides for the Lord Chancellor to make regulations empowering magistrates’ courts, the Crown Court and the Court of Appeal to make an order as to the payment of costs where the court is satisfied
Where the criteria under section 17(1) of the Children Act 1989 (ChA 1989) as to a child in need is met, triggering the duties of a local authority, is interaction between the child’s parents and the local authority voluntary? Will a child automatically becomes subject to the child in need provisions, regardless of whether the parents agree or not, where the child has previously been subject to accommodation under ChA 1989, s 20 and an interim supervision order, when the child is no longer subject to ChA 1989, s 20 (for example, where the child returns home to the parent) but the interim supervision order is continuing?
Q&As
Section 17(1) of the Children Act 1989 (ChA 1989) provides that it is the general duty of every local authority to: • safeguard and promote the welfare of children within their area who are in need, and • so far as is consistent with that duty, promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs A