The Practical Lawyer

Landlord and tenant – residential

Service charges – holiday homes

There are many developments that involve the grant of long leases (typically of chalets or static caravans) with occupation being limited to use as a ‘holiday home’. In practice, many such units are used all year round, often in defiance of lease terms (which have frequently been imposed as a result of planning restrictions).

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Possession – disabled T

For some time there has been concern about the inter-relationship of mandatory-ground possession proceedings under HA 1988 and the Disability Discrimination Act 1995. In Malcolm [2007] it was held that a possession order should not have been made against a disabled T, since, on the facts, that amounted to unlawful discrimination under DDA 1995.

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Lease – no rebuilding

The typical residential flat lease will require L to insure at T’s cost, and oblige L to use the insurance moneys to reinstate the premises.

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Employees – service occupiers

The normal rule is that a tenancy arises when there is a grant of exclusive possession of land for a fixed or periodic term, in consideration of a premium or periodical payments (ie rent). However, service occupiers are not Ts because although, on the face of it, they may appear to have exclusive possession, such occupation is not exclusive because it is a representative occupation on behalf of their employer.

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Tenancy – unfair contract terms

To what extent do the Unfair Terms in Consumer Contracts Regs 1999 apply to standard-form tenancy agreements? The OFT has previously issued guidance making it clear that it takes the view the 1999 Regs can apply, but we now have High Court confirmation.

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Joint tenants – Human Rights

If one of two joint Ts gives notice to quit to L, then at common law the joint tenancy comes to an end. This means that one joint T can unilaterally end the joint tenancy – without the consent or knowledge of the other. The end result is that the other joint T will become a trespasser, and that L will be entitled to possession. This important principle was confirmed in Hammersmith & Fulham [1992].

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Service charges – dispensation

It is well known that L must consult with residential leaseholders about (i) the nature of the proposed works and (ii) the identity of, and likely costs to be charged by, the contractor that L intends to use. Section 20 LTA 1985 sets out the detailed consultation requirements by reference to the Service Charges (Consultation Requirements) Regs 2003.

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Possession – disability

To what extent can T rely upon a disability discrimination argument as a defence to a possession claim?

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Enfranchisement – head lessees

Leasehold and Commonhold Reform Act 1993 gave Ts of long leases the right to enfranchise. This could either be (i) collectively (by buying the freehold) or (ii) individually (with a 90-year lease extension). Prior to 2002, it was necessary for T to have resided in the flat for more than three years, but the removal of that requirement has opened up a whole new growth industry of enfranchisement claims.

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L’s consent – guarantor?

T wanted to assign its lease, but L insisted that the purchasing company provide a personal guarantor. Because of this the purchasing company withdrew and the question then arose as to whether T could forfeit the purchaser’s deposit.

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