College of Estate Management REAL ESTATE LAW Module Code: K203REL Assignment 2 6th of July 2011 Adam Smith

The question involving No.9, The Parade, explores the privity of estate and contract and the enforcement of tenants implied repairing covenants in a lease which was created in March 1995, so therefore falls outside the Landlord and Tenant (Covenant) Act 1995. Within the scenario Colonel Buzzard has assigned his reversion to SDL, whilst the original lease, as taken by Richard Roe, has transferred through Flora Strangeways, Bertram Blue and sub-let on to Miss Charmer Privity of estate exists between two parties, who are in a position of obligation, benefit and burden, as per the terms of the lease, but are not necessarily the original consenting contractual parties. Under s.141 LPA 1925 the transfer of reversion carries with it the benefit of all covenants which run with the land or reversion, Spencers case (1583) At common law, where there is a privity of estate, either party may enforce covenants within lease which touch and concern the land. For a covenant to touch and concern the land it must relate to the property which is subject to lease and affect the capacity of the roles of the parties involved, which in this case a repairing covenant does. Richardson v Sydenham (1703). Miss Charmers would appear to hold the tenants position within the privity of estate relationship, as she is the current tenant, however her lease is a sub tenancy which is protected by the Landlord and Tenant Act 1985 s.11 -16, This is because the lease held with Bertram Blue is a monthly lease which was granted on or after the 24th of October 1961 and does not exceed a term of seven years. Therefore as implied by statue, Bertram Blue is covenanted with Miss Charmer to keep in repair the structure and exterior of the dwelling house or flat CEM (2010) as well as to keep in repair and working order any installations within the demised premise. Meaning the burden to keep the whole of the demised premises in good repair and condition burdens Bertram Blue and not, from SDLs stance as landlord, Miss Charmer.

There is therefore a privity of estate held between Bertram Blue and SDL. This means in accordance with old tenancy stipulations, a tenancy which falls outside the Landlord and Tenant (Covenants) Act 1995, if Bertram Blue fails to repair, the covenant maybe enforced against them, by SDL, under privity of estate. Privity of contract determines the relationship between an original landlord and an original tenant. Under old tenancy stipulations the relationship of privity of contract continues until the granted lease comes to an end, so the set period expires. In this scenario the original tenant would be identified at Richard Roe, with the lease being granted by the original landlord, Colonel Buzzard. With the reversion of the title to SDL, means that the benefit of the covenants by the original tenant s.141 LPA 1925 falls to SDL and not Colonel Buzzard, the burden of covenant falls however to Richard Roe and so is therefore enforceable by SDL, as concluded in Herbert Duncan Ltd v Cluttons (1994) and as displayed in King (1963) SDL have the right to enforce the covenant as transferred on the reversion. In conclusion, SDL can enforce the breach of covenant against, Bertram Blue in accordance with privity of estate, as the parties hold the current position of landlord and tenant respectively and Richard Roe, as the original tenant, as in Common Law and privity of contract. This is the case, as the lease falls outside, the reform of the Landlord and Tenant (Covenants) Act 1995. SDL cannot enforce or burden Flora Strangeways or Miss Charmer. Flora Strangeways as no privity of estate exists as the lease has been successively assigned, with the landlords consent, and each assignee is only liable for breaches of the covenants committed whilst (they) held the lease CEM (2010) so the liability ceases on assignment and Miss Charmer as her lease with Bertram Blue is protected by the Landlord and Tenant Act 1985. Word Count 636

The problem featuring No.2 The Parade and the arrangements in relation to SDL, Amalgamated Jokes Ltd and Tricks of the Trade Ltd, explores the reform to Landlord and Tenant Legislation, in the way of Landlords and Tenant (Covenants) Act 1995 and the effect it has on the enforceability of a leasehold covenants by a landlord on the assignee and assignor of a tenancy. With the introduction of The Landlord and Tenant (Covenants) Act 1995, tenancies, as in this case, created after the 1st of January 1996 mean that the benefit and burden of all landlord and tenant covenants are annexed to every part of the premises (s.3) CEM (2010) Consequently, the assignee of the reversion of the lease becomes bound automatically by the landlords covenants, and the assignee of the tenancy becomes bound by the tenants covenants. The Act abolishes the distinction between touching and concern covenants and others Wilkie, Luxton, Morgan and Cole (2005) With the tenancy in question held in relation No.2 The. Parade, being assigned by SDL on the 1st of March 2004, means it follows the procedure of the Landlord and Tenant (Covenants) Act 1995. The tenancy was assigned to Tricks of Trade Ltd from Amalgamated Joke Limited, this therefore determines that the covenants outlined in the scenario, by virtue of s.5 of The Landlord and Tenant Act 1995, are enforceable by SDL on Tricks of the Trade. The release though is not retrospective, so the assignor remains liable for breaches of covenant committed before the assignment Wilkie, Luxton, Morgan and Cole (2006) s.24 (1) Also it should be noted that if Covenants are of a purely personal nature s.3 (6) they will not pass on assignment, and the rights and liability remain with the original covenanting parties. Even a covenant that does not touch

or concern (unless it is purely personal to the assignor) will be enforceable by the assignee, however, it is assigned Wilkie, Luxton, Morgan & Cole (2006) Therefore the assignor will still be burdened by the covenant. As a matter of course though, an incoming assignee, should satisfy themselves on the question of any possible claim against him, due to an assignors breach. CEM (2011) Based on the facts portrayed from the scenario and from the position, of The Landlord and Tenant (Covenants) Act 1995, the covenants are enforceable against the assignee of the lease, Tricks of the Trade by virtue of section 5. This is in accordance with the definition of privity of estate between the two parties. The privity of contract, between SDL and Amalgamated Tricks Limited, is abolished under The Landlord and Tenant (Covenants) Act 1995 on assignment. However a purely personal covenant to Amalgamated Jokes Limited, under s.3, of the act, does not transfer. A covenant to repair in offer for a rent free period is considered purely personal as the covenant expresses a direct intention to perform in relation to an offer to a particular party. So in essence the distinction by means of the language used, does not touch and concern the land, First Penthouse Ltd v Channel Hotels and Properties (2004). The breach therefore is retrospective (s.24) and the rights and liabilities under it do not pass on an assignment. Word Count 511

The scenario involves and questions Jamess right and ability as a landlord to terminate a business tenancy held with Alfred, as the tenant. The aim is to explore and explain the necessary procedures involved in achieving his, Jamess aim, to terminate the current business tenancy. In do so there is a requirement to highlighting the possible restrictions in doing so, due to Alfreds rights as a tenant, as defined in common law by The Landlord and Tenant Act 1954 Part 2 as applies from 1 June 2004, following commencement of the Regulatory Reform (Business Tenancies) Order 2003 CEM 2011 Firstly the elements of the tenancy need to be evaluated to identify and determine as to whether the tenancy, whether fixed term or periodic, is protected under the principles of the Landlord and Tenant Act 1954. There is a requirement to identify the various elements which define a business tenancy. A business tenancy is any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purpose of business carried on by him of for those and other purposes CEM (2010) The principles of the legislation are to achieve and provide security for a tenant, by allowing an automatic continuation of the tenancy on the historic terms, or by the requirement of the landlord to grant a new tenancy. The continuation of the protection ensures and limits the scenarios from which a landlord can refuse to renew a tenancy whilst strict procedure guidelines are set in termination. Under s.23 (1) of the Landlord and Tenant Act 1954, the contractual period of a fixed or periodic tenancy is automatically continued as by the legislation, that is until it is terminated by the landlord or tenant in accordance with the act. A tenancy may be terminated by a landlord using the following methods, by the servicing of an s.25 notice and by forfeiture in accordance with s.24. As applied to the Freehold premises at No.70 High Street, Both the shop and the flat are comprised in the lease () Alfred uses the shop for the sale

of mens clothing () Alfred has developed a successful business and has been an exemplary tenant Alfreds tenancy satisfies the requirements as defined in s.23 (1) of the 1954 Act. As James does not wish to renew the lease with Alfred, which is due to expire, in 18 months time, he would need to apply for termination of the lease, in accordance with the Act, by serving a termination notice under the procedure guidelines of s.25. If James intents, as the scenario indicates, to terminate the lease, the notice must be in writing, containing the names and addresses of the landlord and tenant, whilst stating why and on which grounds the continuation of granting a new lease is being restricted. The grounds for termination will be explored later on in this paper, whilst including a termination date. There is a strict requirement that the notice is serviced in accordance with the format as dictated by the Act, otherwise the notice is invalid and the tenant is entitled to reject. As James is unwilling to grant Alfred a new tenancy, he should apply under s.29 to a court of law, for a termination order. The termination order will be heard in relation to s.30 and decided as to whether the landlord has sufficient grounds, as defined in the s.25 notice, to terminate. James grounds for opposing or terminating a tenancy are structured under s.30 of The Landlord and Tenant Act 1954. If necessary, James needs too prove the existence of the grounds for refusal, to satisfaction of the court. CEM (2010). The grounds for refusal needs to be in-accordance with the s.25 notice and the application of a termination order under s.29 Section 30 is confined to 6 sections, indicated a-g. Jamess case is

concerned with s.30 (f) as the scenario does not offer enough grounds to discuss s.30 (a) grounds based on repairing obligations, s.30 (b) persistent delays in rent payments s.30 (c) substantial breach of covenant(s) s.30 (d) of the offer to relocate the tenant to different premises s.30 (e) there is no indication that a sub tenancy is held by Alfred and finally s.30 (g) the

scenario does not display James as having any intention himself to reoccupy the premises. In relation to s.30 (f) James would need to justify grounds that he a landlord indents to demolish or reconstruct the premises, or to carry out substantial works of construction, and he could not reasonably do so without obtaining possession CEM (2010) In filling for termination under s.30 (f) James as landlord would need to prove three individual sub-sections in the way of a criteria are met, intention, to reconstruct, and the requirement of the need of possession to complete the intention. James must prove at the time of the hearing, that in line with the dictum of Bettys Caf v Phillips Furnishing Store (1957) that he has the ability to carry the work out himself of through a third party This is achieved through the intentions to re-let the premise to a new firm, who themselves have planning permission to expand the floor area of the main shop. James would need to show a fixed and settled desire to implement (the) proposal with the intention to do so justified under the ruling of Turner v Wandsworth LBC (1994) with the offer of a new lease to the new company. With intention satisfied, James would need to demonstrate that reconstruction was a means to rebuild. A mere identity of premises is not enough CEM (2010) as per Cadle v Jacmarch Properties. The proposed permitted works do not just amount to repair and improvement; there must be an interference with the structure of the building, Romulus Trading Co. Ltd v Henry Smiths Charity Trustees (1990) James is then required to prove possession is required to complete the said works; the determination for this would be based on the matter of fact in each case CEM (2010) as is not reliant of case law to justify. In conclusion in relation to James aim, to terminate the fixed period tenancy held with Alfreds on the effluxion of time, he would need to follow the necessary procedures as highlighted under s.25 notice, by serving the notice not more than 12 months or less than 6 months before the date of termination for the tenancy.

James also needs to ensure that protocol if followed in accordance with s.29 and 30 of The Landlord and Tenant Act 1954 It would be suggested though based on the facts portrayed in Alfred character of tenant, that James would rely, on the grounds of s.30 (f) however based on the facts, of the new companys intention to rebuild and then occupy there is a requirement, if not a weak one, that possession is required to carry out the required work prior to occupation. James should however be aware that as a business tenant Alfred, will be due his rights to compensation in relation to improvements and for disturbance of business in relation to Landlord and Tenant 1927 and 1954 Acts respectively.

Word Count 1173 Total Word Count 2320

Bibliography Card Richard, Murdoch John and Murdoch Sandi (2003) Estate Management Law, Sixth Edition, Oxford University Press CEM (2010) Business Tenancies CEM (2010) Law of Dilapidations CEM (2010) Remedies Hewitson, Russell (2005) Business Tenancies, First Edition, Routledge Wilkie Margaret, Luxton Peter, Morgan Jill and Cole Godfrey (2006) Landlord and Tenant Law, Fifth Edition, Palgrave Macmilliam Statue The Landlord and Tenant Act 1927 & 1954 Part 2 The Landlord and Tenant (Covenants) Act 1995 Regulatory Reform (Business Tenancies) Order 2003 Cited Case Bettys Caf v Phillips Furnishing Store (1957) Cadle v Jacmarch Properties First Penthouse Ltd v Channel Hotels and Properties (2004) Herbert Duncan Ltd v Cluttons (1994) King (1963) Richardson v Sydenham (1703) Romulus Trading Co. Ltd v Henry Smiths Charity Trustees (1990) Spencers case (1583) Turner v Wandsworth LBC (1994)