Landlord And Tenant Law

John McQueen

Description

Emerald's Guide to Landlord and Tenant Law is a comprehensive guide to all aspects of the law as it relates to property ownership. The book will enable the reader to understand this complex area and to understand more fully the law as it relates to ownership and leasing of residential and commercial property. The book will also assist the student or professional.

Sujets

• Inglaterra
• Property law
• Law
• Wales
• England

Informations

• Publié par: Straightforward Publishing
• Date de parution: 25 octobre 2015
• Nombre de lectures: 0
• EAN13: 9781847166302
• Langue: English

Extrait

EMERALD HOME LAWYER
GUIDE TO LANDLORD AND TENANT LAW
John McQueen
Emerald Publishing www.emeraldpublishing.co.uk
Emerald Publishing
2015 Straightforward Publishing
All rights reserved. No part of this publication may be reproduced in a retrieval system or transmitted by any means, electronic or mechanical, photocopying or other wise, without the prior permission of the copyright holder.
British Cataloguing in Publication data. A catalogue record is available for this book from the British Library.
eISBN: 978-1-84716-630-2 Kindle ISBN:978-1-84716-616-6
Printed in the United Kingdom by 4edge www.4edge.co.uk
Cover Design by Bookworks
Whilst every effort has been made to ensure that the information in this book is accurate at the time of going to print, the author and publisher recognise that the information can become out of date. The book is therefore sold on the understanding that no responsibility for errors and omissions is assumed and no responsibility is held for the information held within.
CONTENTS
1. Outline of the Law
2. Obligations in Leases
3. Repairing Obligations
4. Assignments
5. The Rent Act 1977-Protected Tenancies
6. The 1985 Housing Act-Secure Tenancies
7. The 1988 Housing Act-Assured Tenancies
8. Joint Tenancies
9. The Law and Mobile Homes
10. Owner Occupiers and Service Charges
11. Enfranchisement and Extension of Leases
12. Business Tenancies
13. Agricultural Tenancies
Index
Introduction
This Revised Edition of Guide to Landlord and Tenant Law, is a wideranging and comprehensive book dealing with all aspects of the law as it governs the relationship between people and the ownership and tenancy of land.
The relationship between landlord and tenant has always been complex and has changed immeasurably over the centuries, particularly in the 20 th century, with the huge social changes that have transformed the structure of the ownership of land. Gradually, the law has provided more and more protection for the tenant, eroding the privileges of the main land owning classes.
This brief book covers the main areas of landlord and tenant law and all of the requisite Acts. The general nature of tenancies is covered, along with the main obligations of landlord and tenant. Repairing obligations and assignments are covered in depth. Each area is highlighted by key case law.
The main Housing Acts are covered in depth along with business tenancies and agricultural tenancies. So too is the law concerning service charges and also extension of leases and purchase of freeholds.
Although no book covering landlord and tenant law can be totally comprehensive, as the subject area is vast, this particular book attempts to cover the main areas that both the layperson and the student of law need to know.
John McQueen
1
An Outline of the Law
The law of landlord and tenant deals with the relationship, or the legal rights and obligations that arise between people when they form a relationship that is connected to land.
Defining estates in land
There are two types of estates in land which are recognised by the law. These are:
1) An estate in fee simple absolute in possession
2) A term of years absolute.
An estate in fee simple absolute in possession
This rather long-winded term means essentially a freehold estate. The holder of fee simple absolute has an unlimited amount of time on the land. This is the closest thing to absolute ownership of land that is allowable under law. The holder of a fee simple absolute is entitled to carve up the land and create smaller estates for fixed periods of time.
A term of years absolute
Under section 1 of the Law of Property Act 1925, a term of years absolute is an estate of fixed duration, i.e. a 125 lease which expires after the duration of this period. A term of years absolute is usually known as a leasehold estate. Whenever a term of years absolute is carved out of a freehold estate the relationship of landlord and tenant arises.
Classes of occupier
Land can be occupied by a person or persons in a number of ways. There are four broad categories of occupation:
Freehold ownership. As stated, this is where the whole estate is owned indefinitely.
Tenant. Where a person or persons own an estate for a fixed amount of time
Licensee. This is where a person is given permission to use the land for a period of time.
Trespasser. This is where someone simply moves into a premises and occupies illegally.
These are the four categories of occupier at common law. Every occupier falls into one of these categories. When dealing with any type of landlord and tenant problem the first step is to determine to which category of occupier a person(s) belong.
The majority of housing Acts deal with the category of occupier who is a tenant or lessee and not with the other categories, freeholder, licensee or trespasser.
Freehold ownership
The freeholder has the strongest estate in land with the freedom to carve other estates out of it. Witness the great London estates of Grosvenor or Cadogan. Through aristocratic privilege they own great tracts of freehold land in London and have carved other estates in land out of these freeholds. This is the basis of their wealth. However, as we shall see these estates are under attack through the leaseholders right to enfranchise and to extend leases. The occupier who owns the freehold is, in principle, the most secure of all owners with the greatest amount of rights. The estate is unlimited in time; there is no landlord with a superior interest who can reclaim the property or exercise rights over the tenant. There are outside bodies that can exercise power, such a local authorities, with planning powers and compulsory purchase powers. However, on the whole the freeholder is in the most powerful position.
Tenant
The second class of occupier, the tenant or leaseholder has lesser rights than a freeholder but is, nevertheless protected by a strong body of law, the statutory codes, Housing Acts and Landlord and Tenant Acts. For a tenancy to come into existence the following elements must be present:
a) There must be a landlord and tenant
b) There must be exclusive possession;
c) There must be identifiable land
d) The grant must be for a definite period;
e) The lesser must retain a reversion.
The contract of tenancy or lease is usually in writing. A lease exceeding three years must be by deed. Writing is necessary to satisfy section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Section 2 states:
(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each .
For any lease to be created there must be separate legal persons capable of granting and receiving a tenancy. The parties to the tenancy need not be individuals, any legal person such as a corporate entity can grant or receive a tenancy. A tenancy can also be granted to a group of people as joint tenants. A minor, under 18, is not legally entitled to hold an estate in land. Neither is a body which does not in itself have a legal personality. An owner of land cannot grant a tenancy to himself although a director of a company can be a tenant of that company. The company or partnership has a separate legal identity to the tenant.
Where documents are exchanged each party is required to sign his copy for exchange. In Enfield LBC v Arajah (1995) a signature by one of the tenants did not satisfy the requirement under section 2(1) of the 1989 Act. This provision does not apply to a lease not exceeding 3 years, those covered by the 1925 Law of Property Act.
Exclusive possession
This is a fundamental concept. It is fundamental to any tenancy that the tenant must have been granted a sufficient degree of control over the premises for the tenant to be able to lawfully exclude anyone else from those premises, even the freeholder. The tenant will still have exclusive possession if the landlord retains a restricted right to enter the premises for a specific purpose, as is often the case, such as for inspecting the state of repair.
Exclusive possession is an essential requirement for a lease. If the occupier does not have exclusive possession, the right to use the premises does not amount to a lease, although there may be a lesser right to use.
Definition of land
The premises which are the subject matter of the tenancy must be clearly defined.
Term certain
A lease must be granted for a period that is definite. The beginning and the end must be clearly identifiable or capable of being identified. A lease can therefore be for a few days or a thousand years. The most important thing is to be able to identify clearly the term. One such case which highlights this is where a right of occupation held for the duration of the war was held not to be a lease ( Lace v Chantler 1944, KB 368).
The duration of a term is not always expressed clearly. There is a distinction, which will be discussed further on, between a fixed term, a specific number of years or months and a periodic tenancy which will run from week to week or month to month and can be determined by notice.
The reversion
For a lease to be created it is essential that the term created is less than that held by the landlord. Although, as we have seen the freeholder can grant a term which is of any length as they have an unlimited duration, a leaseholder can also grant a further lease, as long as it is less than the term of their own lease. Therefore, a leaseholder with a 125 year lease can grant a 124 year lease, the main principle being that it is of a lesser term than the head lease. If the leaseholder sought to grant a lease of 125 years or more then he would have no reversion, i.e. the lease would not revert to him. There would be no rights and obligations outstanding and therefore there would be no relat