The Practical Lawyer

Landlord and tenant – commercial

Mixed use – right to buy

 A seller of commercial properties should bear in mind the complications that can arise if there is a mixed use (eg commercial unit with flats above).

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Lease – breach of covenant

his table sets out the rules applying to common breaches of covenant. Remember that if a breach is ‘once and for all’ and that breach is waived by L, then the right to forfeit the lease is lost forever. Note also that if a covenant (other than a covenant to pay rent) is broken, then L must decide whether the breach is capable of remedy – if so, any s146 notice must require T to remedy the breach within a reasonable time.

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Forfeiture – insolvency

 If T is in administration, then IA 1986 imposes a statutory moratorium. This means that no legal process can be started without the court’s permission. The court will then consider whether forfeiture would impede the purpose of the administration by balancing the interests of the parties (ie those of L and the administrators/creditors of T).

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Forfeiture – steps

What steps must L take before forfeiting a lease? From a contractual point of view, L simply needs there to be a proviso for re-entry (since that sets out the right to forfeit). Conventionally, this will apply to any breach of covenant by T (unless it is rent, when the right to forfeit will usually only arise 14 or 21 days after the rent falls due). It might also extend to matters which do not involve any breach of covenant (eg insolvency of T). But, there are also statutory requirements that have to be complied with:

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Agricultural building – business tenancy?

 If an agricultural building is no longer used for agricultural purposes, then any letting of it will not be a farm business tenancy, but a conventional business tenancy (under LTA 1954). Obviously, this has important security of tenure implications.

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Floor areas – international standards

In the UK, there are long-established principles for measuring gross external floor area, gross internal floor area and net internal floor area (in particular, the RICS Code of Measuring Practice).

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LTA 1954 renewal – L’s intention

If T has applied for a renewal lease under LTA 1954, the issue of L’s ‘intention’ for the property is decided as at the date of trial.

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Rent freeze – LTA 1954

The general rule is that on a new lease T can expect an initial rent-free period (often three months). Theoretically, that compensates T for the time and expense incurred in fitting out the premises, although it is rare indeed for there to be any such calculation or correlation between fitting-out costs and the negotiated rent-free period. But, what is the impact of that rent-free period on future rent levels?

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Schedule of condition – specific defect

When T enters into a new lease, they may well identify specific defects and want those recorded (so as to limit their liability to repair and reinstate at the end of the lease). Often, this will be recorded by photographs.

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Forfeiture – non-waiver by L

If T is in breach, then L may well have a right to forfeit. But, the danger for L is to inadvertently recognise the continued existence of the lease – in which case, L will be taken to have waived the right to forfeit.

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