The Practical Lawyer

Home
About
CPD
Subscribe
Contact
Landlord and tenant – commercial

CPSE – standard enquiries

The importance of giving accurate replies to the standard enquiries under the Standard Commercial Properties Conditions is illustrated by a recent case.

Subscribers only...
 

Arrears – s17

Section 17 Landlord and Tenant (Covenants) Act 1995 imposes a six-month time limit for claiming ‘fixed charges’ from a former T or guarantor. If L misses the deadline for serving an s17 notice, then the former T or guarantor cannot be held liable for the fixed charge. That six-month period runs from the date when the fixed charge became due.

Subscribers only...
 

Dilapidations – L’s intention irrelevant

 It has become well established in recent years that T will only have to pay dilapidations if L actually intends to carry out the necessary repairs. However, the Scottish CA has recently reversed this approach, upholding a lease provision that allowed L to recover dilapidations without showing that it would actually carry out the work. This was because the money would be paid under a payment clause rather than a damages clause.

Subscribers only...
 

Lease renewal – whole demise?

 Under LTA 1954, when T’s lease expires, T has a right to a new lease of the premises originally demised, which T actually occupies for the purpose of its business.

Subscribers only...
 

Administration – forfeiture

 If T is in administration, then IA 1986 imposes a statutory moratorium. This means that L cannot exercise its right of forfeiture by peaceable re-entry except with the consent of the administrators or permission of the court. This gives the administrators ‘breathing space’ to enable the business to continue to trade (and ultimately to maximise value for creditors). But, the existence of the moratorium can be said to interfere with L’s proprietary rights – and there are arguments that the system is being misused through the use of pre-packs where the business is sold on day one of the administration, with the buyer therefore getting an unjustified benefit at the expense of L.

Subscribers only...
 

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).

Subscribers only...
 

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.

Subscribers only...
 

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).

Subscribers only...
 

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:

Subscribers only...
 

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.

Subscribers only...
 


Page 10 of 51

Most-read articles

IHT – personal representatives’ liability
Thursday, 14 June 2018
PRs are personally liable for paying IHT on an estate, even where the beneficiaries undertake to pay it themselves but do not do so, the court has confirmed. Read more...
Courts – reductions
Thursday, 14 June 2018
The government has announced that it will reduce court staffing numbers from 16,500 to 10,000 by 2022. Read more...
Part 36 – strict compliance
Thursday, 14 June 2018
Part 36 is a ‘self-contained procedural code’ (CPR 36.1). Being ‘self-contained’, this means that no other rules can be imported. Read more...
Damages – lost years
Thursday, 14 June 2018
A ‘lost years’ claim is for the loss of earnings in the years when the claimant will be dead (but would have been alive but for the defendant’s actions). Read more...
Assured shortholds – requirements
Thursday, 14 June 2018
A summary of the requirements for new lets of residential properties: Read more...
Rent reviews – which index?
Thursday, 14 June 2018
Rent under a lease may well be indexed – in which case, it is likely to be by reference to the retail price index (RPI). Read more...
Japanese knotweed – the cases
Thursday, 14 June 2018
Japanese knotweed is virtually irremovable; only the strongest chemicals will work against it, and simply digging out the roots is not sufficient. Read more...
Financial orders – future earning capacity
Thursday, 14 June 2018
H’s future earning capacity was not a matrimonial asset for the purposes of a financial settlement, the Court of Appeal has ruled. Read more...
Notice – start date?
Thursday, 14 June 2018
Suppose an employee is sent a letter of dismissal by post. The letter is delivered, but the employee is on holiday and says she did not read it until a later date. Read more...
Sentencing – hospital orders; hybrid orders
Thursday, 14 June 2018
In this article, the author (who represented the appellant) considers the making of hospital orders in criminal proceedings, and the use of hybrid orders, following a Court of Appeal ruling. Read more...

Resources

IAG International
Join the IBA now!
MSI Global Alliance
www.totallylegal.com
In House Lawyer