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43 Cards in this Set
- Front
- Back
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What is the purpose of having a tenancy agreement/lease?
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Within the contract will be a seris of terms, clauses or covenants. These are promises made by one person to another, to do or not to do a certain thing.
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What are the remedies for breach of contract?
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CONTRACT law is CIVIL law,
so the remedies are: ~ Damages ~ Specific Performance ~ Injunction Other remedies are not available unless they are wrtitten into the contract. Usually LL will want to end a lease should this be necessary. |
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What additional clauses are needed to ensure the LL can end the lease if necessary?
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RE-ENTRY and FORFITURE CLAUSE.
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What is the main piece of legislation that impacts on residential tenancies when drafting leases?
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UNFAIR TERMS in CONSUMER CONTRACTS REGULATIONS 1999
which replaced the 1994 regulations as it was felt that the 1994 regulations did not fully apply to residential tenancies. The regulations state that all terms in a contract between a supplier and consumer must be : ~ FAIR and ~ WRITTEN IN PLAIN ENGLISH If a term is deemed to be unfair, it will not be binding on a tenant, even if it is in a signed lease contract. |
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What date did the Unfair Terms in Consumer Contracts Regulations come into force?
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1st October 1999 but the original regulations were revoked so these regulations apply to any contact entered into after the start of the 1994 Regulations 1st July 1995.
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What is an UNFAIR TERM?
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This is quite difficult - The OFT discusses a long list known as a 'grey' list.
Whether or not a term is unfair will be decided by the courts, but the OFT guideance is likely to be followed. |
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There are a set of questions which can be used when trying to decide whether or not a term is UNFAIR...what are they?
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~ Was the contract entered into on 1st July 1995 or later?
~ In what capacity did the person act? ~ Was the term individually negotiated? ~ Does the term reflect a statutory provision? ~ Does the term define the premises let or the rent charged? ~ Is the term unfair? ~ Is the term written in plain, intelligible language? |
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Where can you find a list of the possible 'unfair terms'?
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These can be found in the guidence from the OFT - in schedule 2 of the Unfair Terms in Consumer Contracts Regulations 1999.
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How are the regulations under the Unfair Terms in Consumer Contracts Regulations 1999 Act enforced?
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By the Director General of Fair Trading. Complaints can be sent directly to the OFT. Other bodies can also hear complaints:
~ The Date Protection Registrar ~ The Director Generals of Utility Suppliere ~ The Rail Regulator ~ Trading Standards Officers (TSO's) ~ The Consumers Association (Which? magazine) |
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From this list where are tenants likely to complain?
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Local Trading Standards Officer or the Comsumers Association.
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All complaints must be heard by the Director General unless.....
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They are considered:
~ Frivolous (abserd, insifficient, futile) ~ Vexatious (solely to harrass or subdue and adversary) OR One of the qualified bodies has agreed to hear and investigate the complaint. |
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What happens if the contractual term is considered unfair?
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The Director General will give reasons and the supplier (LL) will be expected to give an undertaking not to use the term and to modify the contract so that it is acceptable.
If necessary the Director General or Qualifying body can apply for an injunction through the county court or high court to stop the clause or whole contract being used until modified. |
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What new order has been brought in to help TSO's and awarding bodies stop unfair terms?
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Since 1st July 2001 - STOP NOW ORDERS (EC DIRECTIVE) REGULATIONS 2001. This is a statutory instrument and allows the TSO's to act quickly and impose an injuction to stop the term or whole contract.
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A typical lease structure will contain essential information...what are they?
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~ Name and Adress of LL
~ Address of the property to be let ~ The agreed rent and how it is to be paid ~ How long the lease will last ~ What the premises are to be used for ~ How the LL and tenant can end the tenancy ~ If a deposit has to be paid and what it can be used for |
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How can a typical lease be divided?
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~ Core terms
~ Tenants covenants ~ Landlord covenants ~ Additional clauses |
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What are the core terms of a lease?
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~ Name and address of the LL
~ Length of the term ~ Address of the Property ~ Rent ~ Payment date ~ Deposit |
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What are the tenants covenants?
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There is usually a long list covering all tenants liabilities and obligations while in occupation at the property.
Payment of rent - outgoings - uses of the property - repair and maintenance - access - keeping pets - not to cause noise or nuisance etc etc |
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What are the main LL covenants?
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Much fewer than tenants:
~ Giving the tenant quiet enjoyment of the property ~ Insuring the premises ~ Repairing the premises |
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What additional clauses may be covered in a lease?
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~ Rent review provisions
~ Guarantors ~ Grounds for repossession ~ Grounds under which forfeiture of the lease might be sought (but it should be made clear that eviction can only occur once a court order has been obtained. |
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What safe guards should you take when adding additional clauses to leases?
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Leases are subject to the Unfair Terms in Consumer Contracts 1999 and so any additional clauses should be negotiated with the tenant. You should document what negotiations took place and what the outcome of each case was.
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There are 7 different types of covenant found in property law. What are they?
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~ Express
~ Implied ~ Real ~ Personal ~ Positive ~ Negative ~ Usual EIRPPNU Any lease will have a mixture of these different categories of covenant and some covenants will fall into several categories at the same time. All covenants needed for the LL and tenant should be written in as express covenants. |
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What are EXPRESS covenants?
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These normally cover the Core terms of a lease. AND any other terms that the LL or tenant considers important. e.g. Payment of rent, repair, assignment and sub letting and use of the property.
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What are IMPLIED covenants?
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These are the covenants that the LAW will imply as existing between the parties because of their LL and tenant relationship.
They will most often apply when there is a lease granted informally, orally and nothing in writing. The implications of these covenants may come from PREVIOUS CASE LAW or STATUTE e.g. implied covenant that the structure and exterior of residential premises let for less than 7 years must be kept in repair by the LL. Housing Act 1985, Section 11. |
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What are REAL covenants?
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Nearly all covenants found in leases are REAL covenants because they relate to the land or premises. Reasl covenants will pass on assignments, so the assignee will be bound by the same covenanats as the original tenant.
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What are PERSONAL covenants?
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These are covenants that are purely personal to the parties of the lease.
e.g. to tend to the LL garden. |
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What are POSITIVE covenants?
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These involve doing something e.g. paying the rent, rates and taxes. Usually positive covenants are treated as personal covenants between the parties who made the bargain and therefore will not pass with assignement (like REAL covenants).
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What are NEGATIVE covenants?
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These involve NOT doing something. Many of the normal covenants written in a lease are written in a negative way e.g. not to assign without consent, not to alter premises.
Negative covenants are usually regarded in the same way as REAL covenants and will pass automatically on assignement. |
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What are USUAL covenants?
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It is not unusual to come accross tenancies where there is no written lease. In these situations, which covenants are usual will be determinded by the court and may vary from area to area according to local customs. However certain covenants will always be included - pay rent, rates and taxes, LL to keep repair - these are USUAL covenants.
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What are the main obligations implied on Landlords?
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~ Quiet Enjoyment
~ Non-derogation of grant ~ Fitness of premises |
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What is Quiet Enjoyment?
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This means the tenant is allowed to occupy the premises without interference from the Landlord.
The tenants remedies for breach of this covenant, whether express or implied are damages and an injunction. Noise is often a factor that causes annoyance to residential occupiers and if severe could ammount to a nuisance and interfere with Quiet Enjoyment. |
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Sampson v Hodson-Pressinger [1981]
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A landlord had given consent to the tiling of a roof terrace. the tenant in the property below had the same LL and the noise of the footsteps on the roof terrace was a nuisance and regarded as a breach of the covenant for Quiet Enjoyment.
However usually, in the case of normal living noises of adjoining tenants it would not constitute a breach of contract as this was how the property was taken. |
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What is Non-Derogation of Grant?
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Legal speak - means that someone who grants a lease cannot then act in such a way that the value of what is being granted is diminished.
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Define fitness of premises....
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Varying obligations have been imposed on LL about the state of fitness of repair of premises, by both case law and statute.
LL will often try to include clauses to over ride the implied clauses but LL may not override any clause imposed by statute. e.g. In section 11 of the Landlord and Tenant Act 1985 applies to leases of less than 7 years that the LL will keep the structure and exterior of the property in repair and keep existing installations for water, gas, electric and sanitation in repair and working order. |
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What are the obligations IMPLIED on tenants?
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~ To pay rent
~ To pay rates and occupiers charges ~ Maintenance and repair ~ Allowing the LL to enter and view the state of repair |
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What are the obligations of implied covenants in relation to the tenants obligation to pay rent...
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This is an obvious implied covenant. If the tenant has possession of the premises then it is reasonable that a rent should be paid. This will usually be money but could also be service.
on implied covenant the tenant is only liable to pay rent when actual possession takes place and would not have to pay after assignment to another party. |
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What are the obligations of implied covenants in relation to the tenants obligation to pay rates and occupier charges?
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The tenant is the occupier so rates and council tax are charges on occupation. The tenant is liable for these unless there is an express covenant to say the contrary.
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What are the obligations of implied covenants in relation to the tenants maintenance and repair of a property?
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Case LAW has always been reluctant to imply obligations to repair and maintenance on a tenant but there are some minimal obligations:
~ Not to commit waste (damage) either volutary waste or permissive waste. ~ To use the property in a tenant-like manner |
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Warren v Keen [1953]
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Lord Denning summed up the obligation to use the property in a tenant like manner - saying - the tenant must take proper care of the place, clean windows, mend the electric light when it fuses, unblock sink when it is blocked with waste, must not damage the house wilfully or negligently and must see that his family and guests do not do so either......
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Why should the tenant allow the landlord entry to view the state of repair? Implied covenant...
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As the LL has an obligation to repair it is only fair that the tenant allows the LL to see if any repairs are required. The implied obligation means that the tenant allows the LL or agent to enter and view the state of repair at reasonable times during the day, on giving 24hrs written notice.
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How is a lease concluded - made legal?
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The end form of a lease will have been subject to negotiation, once both parties are happy with all the terms in the lease it will need to be signed. This is so that it complies with the LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989 in that it is in writing and contains the provisions of the contract including: the property, the price and the parties to the contract (3 P's) and it must be signed by both parties.
There is an exception to the written rule, as long as the lease is for less than 3 years, it can be spoken and still legal. Leases more than 3 years must be made by deed - which means signing. |
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How should the agreement be signed?
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Both parties usually sign one agreement and then copies are made for records.
OR Two identical agreements can be made, signed by each party and exchanged, known as: ~ The Agreement - signed by the LL and given to the tenant ~ The Counterpart - signed by the tenant and given to the LL. Where two agreements are used the parties may sign in advance of the exchange of contracts, but the date of the agreement is not added until the date of the exchange. Each document will have an identical date. |
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Who else is authorised to sign a tenancy agreement?
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Should be signed by the actual parties or their authorised representative e.g. Agent. Any third party who signs on behalf of the tenant must have power of attorney, unless the lease is short i.e. less than 3 years.
If a company, the agent will need to check that the people signing are authorised to act on behalf of the company. It is also usual to initial each page of the document to prove that the terms were agreed. |
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What is a day?
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Tenancies run from day to day or until a particular day, so the concept of a day is important. Legally from midnight to midnight.
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