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Enforcing Leasehold Covenants 2

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Landlord and Tenant Law Quiz sobre Enforcing Leasehold Covenants 2, criado por nathan_hutchings em 09-05-2013.
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Quiz por nathan_hutchings, atualizado more than 1 year ago
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Criado por nathan_hutchings aproximadamente 11 anos atrás
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Resumo de Recurso

Questão 1

Questão
Authorised guarantee agreements (AGAs)
Responda
  • Leases granted on or after 1st January 1996 (“new leases”)
  • Leases granted before 1st January 1996 (“old leases”)

Questão 2

Questão
Authorised guarantee agreements (AGAs)
Responda
  • AGA = agreement between L and assigning T under which assigning T guarantees that the assignee will perform the lease covenants
  • If assignee does not perform lease covenants then L can take action against assigning T
  • If assignee does not perform lease covenants then L cannot take action against assigning T
  • AGA = agreement between L and assigning T under which assigning T guarantees that the assignee will not perform the lease covenants

Questão 3

Questão
If AGA entered into by assigning tenant
Responda
  • When T1 assigns to T2 the lease covenants pass to T2 (section 3) and T1 is automatically released from any liability under the lease (section 5)
  • If T2 then defaults, L1 can bring an action against T2 due to section 3 or against T1 due to AGA

Questão 4

Questão
If T2 assigns to T3 the lease covenants pass to T3 (section 3) and T2 is automatically released from any liability under the lease (section 5)
Responda
  • T1’s AGA will no longer be enforceable
  • L might request AGA from T2 instead to guarantee T3’s performance
  • T1’s AGA will still be enforceable

Questão 5

Questão
enables L to require assigning T to enter AGA only in certain circumstances
Responda
  • Section 16 LT(C)A 1995
  • Section 15 LT(C)A 1995
  • Section 17 LT(C)A 1995
  • Section 18 LT(C)A 1995

Questão 6

Questão
Section 16 enables L to require assigning T to enter AGA only in certain circumstances:
Responda
  • Lease must contain covenant against assignment without consent of L
  • Must be reasonable to require assigning T to enter AGA

Questão 7

Questão
L and T can agree that L may grant consent to assignment subject to condition that assignor enters into an AGA on assignment
Responda
  • Note the effect of LTA 1927 section 19(1A)
  • Note the effect of LT(C)A 1995 section 19(1A)

Questão 8

Questão
LTA 1927 section 19(1A)
Responda
  • Will then be automatically reasonable for L to impose condition that assignor enters into an AGA on assignment
  • Remember that section 19(1A) only applies to leases of commercial premises granted on or after 1st January 1996 and it affects only assignments (not sublettings)
  • Remember that section 19(1A) does not apply to leases of commercial premises granted on or after 1st January 1996 and it affects only assignments (not sublettings)

Questão 9

Questão
Terms of the AGA
Responda
  • Can only require assignor to guarantee performance of the lease covenants by immediate assignee
  • Can make assignor liable as principal debtor
  • Cannot make assignor liable as principal debtor
  • Cannot require assignor to guarantee performance of the lease covenants by immediate assignee

Questão 10

Questão
Terms of the AGA
Responda
  • Can require assignor to enter new lease if assignee is declared bankrupt and lease is disclaimed by trustee in bankruptcy
  • New lease will be for remainder of term of disclaimed lease and covenants must be no more onerous than in disclaimed lease
  • Can't require assignor to enter new lease if assignee is declared bankrupt and lease is disclaimed by trustee in bankruptcy

Questão 11

Questão
The position of the landlord
Responda
  • When L assigns reversion there is no automatic release from liability under lease
  • When L assigns reversion there is automatic release from liability under lease

Questão 12

Questão
The position of the landlord steps
Responda
  • 1) L may apply to be released
  • 2) Must serve written notice on current T requesting release
  • 3) Must do so before or within 4 weeks after assignment
  • 2) Must do so before or within 4 weeks after assignment
  • 1) Must serve written notice on current T requesting release
  • 3) L may apply to be released

Questão 13

Questão
T can serve written notice of refusal on L within further 4 weeks
Responda
  • If T does not then L automatically released
  • If T does not then L is not automatically released
  • If T does so then L must apply to court

Questão 14

Questão
Former T who suffers loss due to liability under AGA for default of assignee may:
Responda
  • Bring action against defaulting assignee under general law of guarantees
  • Take action against his assignee on indemnity covenant (note that indemnity covenant will not be implied into a new lease)
  • Take no action against his assignee on indemnity covenant (note that indemnity covenant will not be implied into a new lease)

Questão 15

Questão
Sections 17, 18 and 19 Landlord and Tenant (Covenants) Act 1995
Responda
  • Apply to both old and new leases – retrospective
  • Improve position of former T who remains liable either due to privity of contract (if old lease) or due to having entered AGA (if new lease)
  • Do not improve position of former T who remains liable either due to privity of contract (if old lease) or due to having entered AGA (if new lease)

Questão 16

Questão
Only applies if original lease does not provide for variation which has taken place
Responda
  • Section 18
  • Section 17
  • Section 19

Questão 17

Questão
This section applies when a Landlord wishes to recover a fixed charge from a former tenant?
Responda
  • Section 17
  • Section 18
  • Section 19

Questão 18

Questão
Section 17
Responda
  • To recover fixed charge from former T, L must serve default notice on former T within 6 months of charge becoming due
  • To recover fixed charge from T, L must serve default notice on T within 4 months of charge becoming due

Questão 19

Questão
Fixed charges are sums capable of definition or ascertainment in the lease for example:
Responda
  • annual rent
  • service charge
  • damages for the tenant’s failure to keep the property in repair

Questão 20

Questão
Section 17
Responda
  • Default notice must state that the sum is due and that L intends to proceed against former T to recover it
  • If L fails to serve default notice then cannot recover fixed charge from former T

Questão 21

Questão
Former T will not be liable to extent that covenants have been made more onerous by variation
Responda
  • Section 17
  • Section 18
  • Section 19

Questão 22

Questão
Former T will not be liable to extent that covenants have been made more onerous by variation
Responda
  • Section 18
  • Section 17
  • Section 19

Questão 23

Questão
Overriding lease = lease which slots in above lease to defaulting assignee
Responda
  • Section 17
  • Section 18
  • Section 19

Questão 24

Questão
Section 19 results in two leases
Responda
  • Overriding lease between L and former T (T1)
  • Original lease between former T (T1) and defaulting assignee (T2)

Questão 25

Questão
Section 19 results in two leases
Responda
  • Overriding lease between L and former T (T1)
  • Original lease between former T (T1) and defaulting assignee (T2)

Questão 26

Questão
Section 19
Responda
  • Duration of overriding lease = 3 days longer than term of lease being overridden
  • Duration of overriding lease = 4 days longer than term of lease being overridden
  • Other terms = different terms to lease being overridden
  • Other terms = same as terms of lease being overridden
  • Former T becomes immediate landlord of defaulting assignee which gives former T more control over defaulting assignee

Questão 27

Questão
Subleases
Responda
  • Privity of contract between L1 and T1 and between T1 and S1
  • Privity of estate between L1 and T1 and between T1 and S1
  • No privity of contract or privity of estate between L1 and S1 (no contract and no direct landlord and tenant relationship)
  • L1 cannot therefore enforce covenants in headlease or in sublease against S1
  • L1 therefore can enforce covenants in headlease or in sublease against S1

Questão 28

Questão
Likely that headlease and sublease will be on same terms so if S1 is in breach of sublease then T1 will also be in breach of headlease
Responda
  • L1 then has right of action against T1 (headlease)
  • L1 then has right of action against S1 (headlease)
  • T1 has a right of action against S1 (sublease)

Questão 29

Questão
Subleases
Responda
  • Still no privity of contract or privity of estate between L1 and S1 (no contract not in direct landlord and tenant relationship)
  • Privity of contract or privity of estate between L1 and S1

Questão 30

Questão
The restrictive covenant exception
Responda
  • Restrictive covenant = covenant which is negative in substance and which prevents occupier from doing something on land
  • Restrictive covenant = covenant which is negative in substance and which does not prevent occupier from doing something on land

Questão 31

Questão
If dealing with unregistered title:
Responda
  • Restrictive covenant directly enforceable against subtenant if he has notice of it
  • Restrictive covenant automatically directly enforceable against subtenant

Questão 32

Questão
If dealing with registered title
Responda
  • Restrictive covenant automatically directly enforceable against subtenant
  • Restrictive covenant directly enforceable against subtenant if he has notice of it

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