Leases Termination Notes

• Effluxion of Time

  • expiration of fixed-term lease – most common way fixed term leases ends.

  • no notice to quit required.

  • but: tenant may have security of tenure at end of lease.

    • business tenancies: most protected by Part II LTA 1954: may be entitled to new lease if follows certain procedures + time limits.

    • residential tenancies: t. may have right to remain in occupation –

      • Rent Act 1977: private tenancies granted before 15 Jan 1989.

      • Housing Acts 1985: public sector tenancies.

      • Housing Act 1988: private tenancies granted after 15 Jan 1989.

  Break Clause

  • provision in fixed term lease: allowing either party to serve notice during tenancy to bring to premature end.

  Surrender

  • surrender: t. hands back lease to l. with l’s consent premature termination.

    • can be express or implied.

    • effect on sub-ts: s139 LPA 1925.

  Merger

  • t. acquires l’s interest: lease absorbed by reversion destroyed.

  Enlargement

  • s153 LPA 1925: t. may enlarge lease into fee simple by deed.

    • conditions: original lease term >300 years + unexpired term >200 years.

  • v. rare in practice.

  Notice to Quit

  - Notice to quit: method for determining periodic tenancy.

  • joint tenants: notice by 1 sufficient – Hammersmith BC v Monk [1991].

  - Required period of notice:

  • yearly tenancy: year’s notice (182 days) tenancy expires on anniversary of commencement.

    • quarter day start of tenancy: 2 quarters notice sufficient.

    • (unless agreement to contrary).

  • other periodic tenancies: 1 full period’s notice tenancy expires at end of complete period.

    • (period tenancies: created expressly or by implication – acceptance of rent referable to a period).

  • dwelling houses: Protection from Eviction Act (PFEA) 1977 (as amended by Housing Act 1988).

    • extra requirements for notice to quit:

      • 4 weeks minimum.

      • in writing, containing prescribed information informing tenant of rights (e.g. security of tenure).

    • provisions prohibiting eviction + harassment:

      • PFEA 1977: criminal offence to evict residential occupier unlawfully.

      • HA 1988: illegal eviction statutory tort: occupier entitled to damages.

  • tenancies at will: no period of notice necessary.

    • (but N.B. periodic tenancy if landlord accepts rent referable to period while t. in possession).

  Frustration

  • theoretically possible: e.g. where leasehold property destroyed.

  Repudiation

  • t. can end tenancy for repudiatory breach of cov. by l. – Hussein v Mehlman [1992].

  Forfeiture

  - Forfeiture: l. terminates lease prematurely for breach of covenant by t.

  • 1. breach of covenant by t. required.

  • 2. express clause required: right to forfeit never implied into legal lease.

    • but equitable leases: implied right to forfeit for non payment of rent – Hodgkinson v Crowe [1875].

  • legal right of re-entry (s1(2) LPA 1925) created by forfeiture.

  • methods of forfeiture:

    • 1. peaceable re-entry: l. physically enters, changes locks + puts up notice of forfeit.

      • but: only available for pure business premises.

    • 2. court order.

      • necessary for residential premises – s2 Protection from Eviction Act 1977

        • inc. mixed residential/commercial premises – Patel v Pirabakaran [2006].

  - Waiver: l. loses right if l. has knowledge of breach + does unequivocal act recognising continued existence of lease.

  • e.g. accepting/suing for rent after breach; distraining for rent due before or after breach despite being aware.

    • John Lewis plc v Viscount Chelsea [1993]: alleged breach of cov. to demolish + reconstruct a building; t. paid rent to l’s bank; bank initially accepted rent then returned it after a delay no waiver: l. had made desire to forfeit clear.

    • Thomas v Ken Thomas Ltd [2007]: l. accepted outstanding rent payment from t. waived right to forfeit.

    • Osibanjo v Seahive Investments Ltd [2008]: l. can accept part of t’s cheque + still reserve right to forfeit.

  • can be unintentional: Central Estates (Belgravia) Ltd v Woolgar [1972]: l’s agent sent out rent demand where l. (though not agent) aware of breach.

  • continuing vs. non-continuing breach:

    • continuing breach (e.g. failure to repair): waiver lasts only until next rent day l. can then choose to reject rent + forfeit lease.

    • non-continuing breach (‘once and for all’) (e.g. sub-letting without consent): waiver permanent once rent accepted, l. can never reject next rent due + forfeit later for previous arrears if still outstanding.

  • can operate re: breach of covenant to pay rent: e.g. if t. fails to pay 1 month’s rent + l. demands next months’ rent, has waived right to terminate for failure to pay (but continuing breach: can reject next rent due after that + forfeit for previous arrears if still outstanding).

  • waiver does not affect l’s other remedies: e.g. action for debt; damages.

  Forfeiture for Non-Payment of Rent

  - Forfeiture for non-payment of rent – procedure:

  • 1. formal demand by l: for exact amount due, upon premises, on day it becomes payable, during daylight.

    • exceptions:

      • expressly excluded by lease: e.g. words in forfeiture clause ‘whether formally demanded or not’.

      • s210 Common Law Procedure Act 1852: at least 6 months rent in arrears + insufficient distrainable goods on premises to satisfy arrears due (N.B. distress due for reform – TCA 2007).

    • other payments expressed in lease as additional rent (e.g. service charge): l. can forfeit for non-payment in same way as rent.

  • 2. court order / peaceable re-entry: once formal demand made (or if formal demand not necessary).

  • 3. t. may apply for relief: court’s discretion to allow lease to continue despite forfeiture.

  - Relief from forfeiture: court usually allows lease to continue on condition t. pays of arrears.

  • before trial: if t. pays into court all arrears + costs before trial, all further proceedings stayed.

    • High Court: s212 Common Law Procedure Act 1852.

      • provided at least 6 months rent in arrears – Standard Pattern Co Ltd v Ivey [1962].

    • County Court: s138 County Court Act 1984.

  • at or after trial: court has discretion to grant relief (i.e. allow lease to continue on...

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