Property law and leasing

191893 Delivery Time: Standard – 5 Days per 5000 words Title: Question: Part A ( I ) Leslie plc, by title, granted a ten-year rental of certain premises to Target Ltd from 1st November 2000. The rental included compacts by Target Ltd. non to delegate or sub-let the whole or any portion of the premises without the landlord ‘s consent, to maintain the premises in fix and to pay the quarterly rent. There was a provision for re-entry in the event of breach of any compact. In 2002, Target, with Leslie ‘s consent, assigned the rental to Ace Co. Ltd. In 2004, Leslie sold and conveyed the freehold reversion of the premises to Rake plc. Rake has discovered that Ace has, without seeking consent, given a monthly sub-tenancy of portion of the premises to Simon and that the premises are out of fix. Rake informed Ace of its concern over these affairs in a missive attach toing the demand for the one-fourth ‘s rent due on 1st November 2006 and stated that it, Rake, was sing its place. Ace sent a check in response to the demand, which Rake has non yet cashed. You are a trainee in the house of canvassers consulted by Rake. Your principal has asked you to Produce a study of 1,200 words sketching the legal rules and placing the relevant statutory commissariats and instances as to whether: ( a ) Rake has the benefit and Ace has the load of the compacts in the rental ; ( B ) either breach of compact has been waived so as to forestall Rake being able to take forfeiture action in regard of that breach ; ( c ) whether the breaches are irremediable for the intents of s.146 ( 1 ) of the Law of Property Act 1925 Your study should place whether there are any peculiarly relevant or recent instances on these issues. Advice will be given to Rake plc on the footing of this study. Question: Part B Explain exactly ( in 300 – 350 words ) what was your research scheme and how you carried out the research under Question: Part A, giving inside informations of the electronic hunts that you made. Outside the word bound, give a bibliography of all books and databases used to transport out the research, and give a list of all instances that you consulted ( whether or non really used ) , with their mentions.

To make up one’s mind on who has the load and the benefit of the compact it is necessary to analyse the type of compact that was originally made between Leslie Plc and Target. Covenants against assignment can either be absolute [ 1 ] or qualified [ 2 ] . An absolute compact would forestall any assignment or subletting. A qualified compact entitles the renter to sublease or delegate with the landlords consent [ 3 ] . Under the Landlord and Tenant Act 1927 s19 ( 1 ) the landlord can non keep back consent unreasonably [ 4 ] . Should he make up one’s mind to keep back consent he would hold to demo that consent is being withheld moderately [ 5 ] . Reasonableness is non defined in the statute law but has been defined by instance jurisprudence [ 6 ] . In the above it is stated that Leslie had agreed to let Target to delegate the rental.

When publishing a rental the landlord can enforce duties on the renter for fixs [ 7 ] . Where the rental is for less than 7 old ages at that place is an implied compact [ 8 ] that the landlord will mend the construction [ 9 ] . Enforcement of the duty of the landlord to mend the belongings is normally merely in regard of residential rentals [ 10 ] . Commercial rentals are free to do their ain understanding [ 11 ] and the duty of the landlord is merely implied where the parties have non made express proviso for fixs [ 12 ] . Express compacts for fix by the renters normally contain an exclusion for just wear and tear. It is usual for this exclusion to merely cover things that wear out in the class of normal and sensible usage [ 13 ] . Where the wear and tear consequence in farther harm to the belongings the renter may go responsible for mending the original wear and tear [ 14 ] .

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If the rental between Leslie Plc and Target had occurred prior to 1995 so the assignment of the occupancy from Target to Ace would non shrive Target from the liability in conformity with the contract [ 15 ] . This efficaciously would hold meant that Target would still be bound by the compacts made with Leslie throughout the continuance of the rental even though his involvement has been assigned [ 16 ] . Covenants in rentals are deemed to be made on behalf of the covenantor and his replacements in rubric unless a contrary purpose is expressed [ 17 ] . Leases issued prior to the Landlord and Tenant ( Covenants ) Act 1995 allowed liability of the original renter to go on even though the original renter has no control over the assignee [ 18 ] .

If the rental had been issued prior to 1995 although the landlord would usually seek damages against the assignee [ 19 ] in the first case there is no demand that the landlord should continue in this mode. Efficaciously the landlord could choose to seek damages from the original leaseholder alternatively of the assignee [ 20 ] . This was peculiarly utile where the assignee had become insolvent [ 21 ] . As the rental began after 1995 the Landlord and Tenant ( Covenants ) Act 1995 s5 releases Target from the load of the compact and passes the load to Ace [ 22 ] . Under s3 of the LT ( C ) A 1995 the benefit and load of all compacts [ 23 ] shall be annexed to each and every portion of the demised premises and shall go through on assignment and the trial of touching and refering does non use [ 24 ] . Covenants expressed in a personal manner are non transferred to the assignee [ 25 ] .

It is of import to look at the privity of the contract and the privity of estate [ 26 ] as the differences that apply under each will impact the ability of Rake to implement the compact. The difference between holding both the privity of contract and the privity of estate is that under a privity of contract all compacts bind [ 27 ] whereas under privity of estate [ 28 ] so merely the compacts which are regarded as typically portion of the landlord and renter relationship will be bound [ 29 ] , such as compacts to mend. Privity of estate merely affects the benefit and load on the assignee and the landlord in regard of compacts that touch and concern the land [ 30 ] . In Spencer’s Case [ 31 ] it was statedthe compact must either impact the land as respects the manner of business, or it must be such as per Se, and non simply from indirect fortunes, affects the value of the land[ 32 ].

There would be both privity of contract [ 33 ] and privity of estate between Leslie Plc and Target as they were the original lease giver and leaseholder. The assignment of the rental to Ace would merely make a privity of estate between Leslie and Ace as there would be no direct contractual relationship between them. Similarly by selling the belongings to Rake there would be no privity of contract between Rake and Target or Rake and Ace [ 34 ] , merely a privity of estate. If the assignment of the bomber occupancy Simon had been agreed by Rake so at that place would hold been privity of estate between Rake and Simon. As the assignment of the rental to Simon was non consented to by Rake there would be no privity of estate and Rake would non be able to implement the fix compact against Simon [ 35 ] .

It could be argued that the assignment of the sub-tenancy to Simon has waived the right of Rake to claim forfeiture for the breach of the compact to mend the belongings, as merely restrictive compacts can be enforced against a bomber renter [ 36 ] . As Rake has control over the belongings it could be argued that he should still hold the load of the compacts. This would intend that Rake could implement the fix covenant [ 37 ] . If Ace carried out the fixs as requested there would be no breach of the fix compact and Rake could non take forfeiture action for this breach [ 38 ] .

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Unfortunately the action by Ace of subleasing without the consent of Rake could be seen as a breach of the compact if the concern run by Simon is separate from Ace’s concern [ 39 ] . This would let Rake to take forfeiture action for the breach of the subletting compact and to coerce Simon to give up his portion of the belongings as it had been sublet in breach of the compact [ 40 ] . The consequence of this would be to convey the term of the rental to a premature terminal. It has already been stated in the scenario above that a status was inserted into the leasing understanding that any breach of the compact would entitle the covenantor to take forfeiture action [ 41 ] .

Under s146 of the Law of Property Act 1925 it is possible in some fortunes for the breach to be remedied. If the breach was due to the fix work merely and Ace had non sublet to Simon so the breach could be rectified by Ace transporting out the necessary fixs.

As the breach was due to the subletting every bit good the lone manner in which this could be rectified would be for Ace to end the understanding with Simon and resume ownership of the belongings. The subletting of portion of the belongings to Simon could be viewed as a license as opposed to a rental as Simon does non hold full rights of ownership as he would hold if a rental had been created [ 42 ] . The differentiation between a rental and a license is easier to find in a residential scene. In a commercial understanding the differentiation is made by analyzing where the control of the premises lies [ 43 ] . The consequence of this being viewed as a license would intend that Simon would be able to claim proprietary estoppel if Ace attempted to revoke the license [ 44 ] .

Part B

My research scheme involved looking at the types of compacts that can be made so analyzing from the job above whether the load and the benefit of the compacts was able to reassign between the assorted parties. I looked at the state of affairs from the position of if the contract had been created before the 1995 Act and compared it with the alterations that have been introduced by the 1995 Act. This was done to demo that when reding a client as to whether a compact is adhering on an original covenantor and covenantee it is indispensable to cognize when the rental was created. I so looked at privity of contract and estate as the rights over the enforcement of the compact can be straight affected if there is privity merely privity of estate. I considered this both from a pre 1995 point of view and a station 1995 point of view.

I so addressed the issue of license or rental as the difference between the 2 affects the place as to the binding nature of compacts.

To endorse up my statement I supported as many points possible by instance jurisprudence and statute law. My chief beginning of electronic research was Westlaw for instances to back up my statement and www.opsi.gov.uk for relevant statute law. I besides used electronic hunt engines to acquire up to day of the month information on any recent alterations environing the jurisprudence on compacts. A utile site that looked at a state of affairs really similar to the 1 outlined above was hypertext transfer protocol: //www.propertylawuk.net/ltssublettingandsharingoccupation. hypertext markup language. This peculiar site highlighted several similar instances some of which have been cited in the study above.

Bibliography

Bryn Perrins,Understanding Land Law, 3rdEd, 200, Cavendish Publication Ltd

Garvells, N P,Land Law Text and Materials, 2neodymiumEd, 1999, Sweet and Maxwell

Thomas, M,Legislative acts on Property Law, 8ThursdayEd. 2001, Blackstone’s

Transportation of land:The Law of Positive and Restrictive Covenants( 1984 ) Law Commission No 127

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Law Commission Report No 238, Landlord and Tenant: Duty for State and Condition of Property ( 1996 )

hypertext transfer protocol: //www.landregistry.gov.uk

hypertext transfer protocol: //www.propertylawuk.net

www.opsi.gov.uk

Table of Cases

Addiscombe Garden Estates Ltd. V Crabbe [ 1958 ] 1 Q.B. 513

Allied London Investments Ltd V Hambro Life Assurance Ltd ( 1985 ) 50 P & A ; CR 207

Amsprop Trading Ltd v Harris Distribution Ltd [ 1997 ] 1 W.L.R. 1025 [ 1997 ] 2 All E.R. 990 [ 1997 ] 2 E.G.L.R. 78 [ 1997 ] 47 E.G. 127 [ 1996 ] N.P.C. 154 Times, November 13, 1996

Avonridge Property Co Ltd V Mashru [ 2005 ] UKHL 70 [ 2005 ] 1 W.L.R. 3956 [ 2006 ] 1 All E.R. 127 [ 2006 ] 1 P. & A ; C.R. 25 [ 2006 ] L. & A ; T.R. 4 [ 2006 ] 1 E.G.L.R. 15 [ 2006 ] 01 E.G. 100 [ 2005 ] 49 E.G.C.S. 88 ( 2006 ) 103 ( 1 ) L.S.G. 16 ( 2006 ) 150 S.J.L.B. 28 [ 2005 ] N.P.C. 138 Times, December 5, 2005

Baker V Merckel [ 1960 ] 1 QB 657

Beegas Nominees Ltd v BHP Petroleum Ltd [ 1997 ] C.L.Y. 3093 1997

Clinton Cards ( Essex ) Ltd V Sun Alliance & A ; London Assurance Co Ltd [ 2002 ] EWHC 1576 [ 2003 ] L. & A ; T.R. 2 [ 2002 ] 3 E.G.L.R. 19 [ 2002 ] 29 E.G.C.S. 150

Congleton Corporation v Pattison ( 1808 ) 10 East 130

Crestfort Limited V Tesco Stores Limited [ 2005 ] EWHC 805 ( Ch ) ; [ 2005 ] 37 EG 148.

Dellneed Ltd V Chin [ 1987 ] 1 E.G.L.R. 75

Edlington Properties Ltd V JH Fenner & A ; Co Ltd [ 2005 ] EWHC 2158 [ 2006 ] 1 All E.R. 98

Hall V Ewin ( 1888 ) 37 Ch.D. 74 ; Tulk v Moxhay ( 1848 ) 2 Ph 774

Harris v Williams-Wynne [ 2005 ] EWHC 151

Haskell v Marlow [ 1928 ] 2 KB 45

Homebase Ltd V Allied Dunbar Assurance plc [ 2002 ] EWCA Civ 666 ; [ 2002 ] L & A ; TR 27 ; [ 2002 ] 27 EG 144 ; [ 2003 ] 1 P & A ; CR 6

International Drilling Fluids Ltd V Louisville Investments ( Uxbridge ) Ltd [ 1986 ] Ch 513

Janet Reger International Ltd v Tiree Ltd [ 2006 ] EWHC 1743 [ 2006 ] 30 E.G.C.S. 102

Latimer V Carney [ 2006 ] EWCA Civ 1417 [ 2006 ] 45 E.G.C.S. 191 ( 2006 ) 103 ( 44 ) L.S.G. 31 [ 2006 ] N.P.C. 117

Legal & A ; General Assurance Society Ltd V Expeditors International ( UK ) Ltd [ 2006 ] EWHC 1008

Lynnthorpe Enterprises Ltd V Sidney Smith ( Chelsea ) Ltd [ 1990 ] 08 E.G. 93 [ 1989 ] E.G.C.S. 63

Mahon V Sims [ 2005 ] 3 E.G.L.R. 67 [ 2005 ] 39 E.G. 138 Times, June 16, 2005

MEPC Plc v Scottish Amicable Life Assurance Society [ 1996 ] B.P.I.R. 447

Oceanic Village Ltd V United Attractions Ltd [ 2000 ] Ch 234

Pacific Wash-a-Matic V RO Booth Holdings [ 1978 ] 5 W.W.R. 525

Plimmer v Wellington Corporation ( 1884 ) 9 App. Cas. 699 ( M & A ; B ( L ) 589 ; G 641 )

PW & A ; Co v Milton Gate Investments Ltd [ 2003 ] EWHC 1994

R V Tottenham and District Rent Tribunal Ex p. Northfield ( Highgate ) [ 1957 ] 1 Q.B. 103 [ 1956 ] 3 W.L.R. 462 [ 1956 ] 2 All E.R. 863 ( 1956 ) 120 J.P. 472 54 L.G.R. 421 ( 1956 ) 100 S.J. 552

R A Securities Ltd V Mercantile Credit Co Ltd [ 1995 ] 3 All ER 581

Regis Property Co Ltd V Dudley [ 1959 ] AC 370

Scottish & A ; Newcastle Plc V Raguz ( No.2 ) [ 2004 ] EWHC 1835

Shell-Mex & A ; B.P. Ltd. 5 Manchester Garages Ltd. [ 1971 ] 1 W.L.R. 612

Smith V Spaul [ 2002 ] EWCA Civ 1830 [ 2003 ] Q.B. 983 [ 2003 ] 2 W.L.R. 495 [ 2003 ] 1 All E.R. 509 [ 2003 ] H.L.R. 38 [ 2003 ] 2 P. & A ; C.R. 21 [ 2003 ] L. & A ; T.R. 17 [ 2003 ] 1 E.G.L.R. 70 [ 2003 ] 17 E.G. 148 [ 2003 ] 3 E.G.C.S. 125 ( 2003 ) 100 ( 9 ) L.S.G. 28

( 2003 ) 147 S.J.L.B. 27 [ 2002 ] N.P.C. 164 [ 2003 ] 1 P. & A ; C.R. DG19 Times,

December 28, 2002

Spencer ‘s Case ( 1585 ) 5 Co.Rep. 16a ; 77 E.R. 72 ( M & A ; B ( L ) 503 )

Street V Mountford [ 1985 ] A.C. 809 ( M & A ; B ( L ) 417 ; G 386 )

Thames Manufacturing Co Ltd V Perrots ( Nichol & A ; Peyton ) Ltd ( 1984 ) 50 P & A ; CR 1

Unity Joint Stock Banking Association V King ( 1858 ) 25 Beav. 72 ; 53 E.R..563

Vision Golf Ltd V Weightmans [ 2006 ] EWHC 1766

Wadsworth V Nagle [ 2005 ] EWHC 26

Walker ‘s Case ( 1587 ) 3 Co.Rep. 22a ; 67 E.R. 676

Warnford Investments Ltd v Duckworth [ 1979 ] Ch 127

Waycourt Ltd V Viscount Chelsea [ 2006 ] EWCA Civ 511

Westbury Estates Ltd v Royal Bank of Scotland Plc 2006 S.L.T. 1143 2006 G.W.D. 38-757

Table of Legislative acts

Landlord and Tenant ( Covenants ) Act 1995

Landlord and Tenant Act 1927

Landlord and Tenant Act 1985

Landlord and Tenant Act 1988

Law of Property Act 1925

Law of Property Act 1926

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