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Barton & Booth with Hibbs: Q&A: Family Law 2007 and 2008Q&A series
Selected Landlord & Tenant Terms
agreement for a lease A contract to enter into a lease. Special rules govern the creation of such a contract. Before 27 September 1989, a contract to grant a lease was unenforceable unless it was evidenced in writing, or evidenced by a sufficient act of part performance(such as entering onto the property and paying rent). Since 27 September 1989, a contract to grant a lease for not more than three years may be made orally or by any kind of written agreement. A contract to grant a longer lease must be in writing, incorporating all the terms of the agreement, and signed by the parties. A contract that does not comply with these requirements is wholly void and can no longer be evidenced by part performance.
assured shorthold tenancy A special kind of assured tenancy at the end of which the landlord is entitled to recover possession without having to show one of the usual grounds for possession of an assured tenancy. This kind of tenancy was introduced by the Housing Act 1988, replacing protected shorthold tenancies. Under the 1988 Act the landlord was obliged to give the tenant notice before the grant of the tenancy that it was an assured shorthold tenancy. However, under the Housing Act 1996, from 28 February 1997 the requirement for the landlord to serve a notice is removed, and all new tenancies are automatically assured shortholds unless otherwise agreed. If a landlord wants to give the tenant security under an assured tenancy, this must be specifically created; if this is not done, the tenancy is an assured shorthold without security of tenure. A tenant can apply to a rent assessment committee if he thinks the rent of the tenancy is excessive. The committee can fix a new rent if they think that the rent is significantly higher than that of other assured tenancies in the area. However, government regulations may restrict this right in certain areas or in certain circumstances.
The landlord may obtain possession at any time when he would have been entitled to do so contractually, by giving two months' notice and specifying that the tenancy is an assured shorthold tenancy. No order for possession may be made in the first six months of the tenancy.
assured tenancy A form of tenancy under the Housing Act 1988 that is at a market rent but gives security of tenure. The premises may be furnished or unfurnished. This kind of tenancy replaces protected tenanciesexcept those in existence before the Housing Act 1988 came into force. Former assured tenancies under the Housing Act 1980 (where different provisions applied) are converted into the new kind of assured tenancy.
To qualify as an assured tenancy, the premises must be let as a separate dwelling, within certain rateable value limits. There are certain exceptions, such as when the landlord lives in another part of the same premises. Under the Housing Act 1996, from 28 February 1997 all new residential tenancies are assured shorthold tenancies without security of tenure, unless a notice is specifically served stating that the parties are creating an assured tenancy.
The rent is an open market rent agreed between the landlord and tenant, and it is not registered. However, the landlord must give the tenant notice if he intends to increase the rent, and the tenant can then apply to a rent assessment committee if he thinks the increase is excessive. The rent assessment committee determines the rent at the current market value. There are limits on the frequency of rent increases.
The landlord can only regain possession on certain statutory grounds. These include: nonpayment of rent; that the landlord formerly lived in the dwelling and requires it again for his own use; that the tenant is a nuisance neighbour or may become a nuisance; and that alternative accommodation is available (the court has discretion in this last case).
When the tenant of an assured tenancy dies, his spouse has a right, in certain circumstances, to take over the tenancy as successor to the deceased tenant. An assured tenant cannot usually assign the tenancy without the landlord's consent. See also statutory periodic tenancy.
break clause A clause often contained in fixed-term tenancy agreements that provides for an option to terminate the tenancy at a particular time or when a particular event occurs.
business tenancy A tenancy of premises that are occupied for the purposes of a trade, profession, or employment. Business tenants have special statutory protection. If the landlord serves a notice to quit, the tenant can usually apply to the courts for a new tenancy. If the landlord wishes to oppose the grant of a new tenancy he must show that he has statutory grounds, which may include breaches of the tenant's obligations under the tenancy agreement or the provision of suitable alternative accommodation by the landlord. Otherwise the court will grant a new tenancy on whatever terms the parties agree or, if they cannot agree, on whatever terms the court considers reasonable. When the tenancy ends, the tenant may claim compensation for any improvements he has made.
Under the Landlord and Tenant (Covenants) Act 1995, in force from 1 January 1996, when business tenancies are assigned the new tenant generally takes over the covenants (or promises and warranties) of the first tenant in the lease except when otherwise agreed. Previously the old tenant was always liable, even after assignment, if a subsequent tenant defaulted on the lease.
fair wear and tear A phrase often found in repairing covenants in leases. When a tenant is not obliged to repair fair (reasonable) wear and tear occurring during his tenancy, he must nevertheless do any repairs to prevent consequential damage resulting from the original wear and tear. For example, if a slate blows off a roof the tenant is not liable to repair it, but he ought to prevent the rain entering through the hole and doing more damage.
fixed term A tenancy or lease for a fixed period. The date of commencement and the length of a lease must be agreed before there can be a legally binding lease. It may take effect from the date of the grant, an earlier date, or a date up to 21 years ahead. At the end of the fixed term, the lease or tenancy comes to an end automatically: there is no need for a notice to quit. However, if the tenancy is an assured tenancy, it will continue at the end of the term as a statutory periodic tenancy unless it is brought to an end by surrender of tenancy or a court order. See also half a year; long tenancy.
housing association A non-profit-making organization whose main purpose is to provide housing. A fully mutual housingassociation is excepted from the assured tenancy provisions. The Housing Corporation can make grants to housing associations registered by them.
Housing Ombudsman An official appointed, under the Housing Act 1996, to deal with complaints against registered social landlords (not including local authorities). The first Housing Ombudsman was appointed with effect from 1 April 1997; he is in charge of the Independent HousingOmbudsman.
lodger n. A person who is given occupation of part of a house in return for rent, where the premises remain under the close control of the owner. A lodger normally has a mere licence rather than a tenancy.
occupier n. A person in possession of land or buildings as owner, tenant, or trespasser. If he is a trespasser he may obtain a right to lawful occupation if the owner accepts money from him as rent, in which case a tenancy may be created, or through adverse possession for a sufficient period.
rent n. Payment by a tenant to his landlord under the terms of a lease or tenancy agreement. The obligation to pay rent is implied in all leases. If the tenant fails to pay his rent, the landlord can levy distress for rent, take action for forfeiture of the lease, or bring a court action against the tenant to claim the rent due. The manner and time of payment is as specified in the lease or tenancy agreement. If there is no express provision, rent should be paid to the landlord or his agent at the end of each rental period or, in the case of a fixed term, at the end of each year. The tenant can only deduct from the rent amounts that the lease or tenancy agreement allows. If the parties wish, the rent need not be paid in money: it may be in the form of service to the landlord or payment in kind. However, the amount of rent must be certain or capable of being ascertained. See also fair rent.
rental period A period in a lease or tenancy for which the tenant must make a payment of rent. In the absence of agreement, this is yearly in the case of a fixed term. For other periods, see periodic tenancy.
sublease (subtenancy, underlease) n. A lease granted by a person who is himself a lessee of the same property. The sublease must be shorter than the main lease. Thus a lessee with a lease for 10 years can grant a sublease for a period up to 10 years less one day. The formalities for creating and terminating a sublease are the same as those for a lease. There is often a covenant in a lease prohibiting subletting. If a lessee sublets in breach of the covenant the sublease will be valid, but the landlord may have a right of forfeiture of the lease. In some cases the lease specifies that the lessee may only sublet with the landlord's consent. In this case, the landlord may not withhold his consent unreasonably and he cannot charge a fee for giving his consent unless there is express provision for this in the lease. If the main lease is forfeited, any sublease automatically comes to an end. However, the surrender of a lease does not affect any sublease.
subtenancy n. See sublease
tenancy at sufferance A tenancy that arises when a tenant is holding over and the landlord has not indicated whether or not he agrees to the tenant's continued occupation. If the landlord gives his express agreement, the tenancy becomes a tenancy at will.
tenancy at will A tenancy that can be terminated by the landlord or the tenant at any time. A tenancy at will usually arises by implication, when the owner of land allows a person to occupy it although he has no fixed term, periodic tenancy, or licence (for example, when a landlord agrees to the tenant holding over). More rarely, a tenancy at will may be created by express agreement. If the landlord starts to accept rent on a regular basis, an ordinary periodic tenancy is created. A tenant who holds over after a fixed-term assured tenancy expires may have a statutory periodic tenancy. A tenancy at will of business premises does not have the statutory protection given to a business tenancy. In the case of residential premises, however, the usual statutory protection from eviction will apply. A tenancy at will can be terminated by the landlord demanding possession or if either he or the tenant dies or parts with his interest in the land.
tenancy by estoppel A tenancy that exists despite the fact that the person who granted it had no legal right to do so. Such a tenancy is binding on the landlord and tenant but not on anyone else. If the landlord subsequently acquires the right to grant the tenancy, it automatically becomes a full legal tenancy.
underlease n. See sublease.
waste n.1. Any alteration of tenanted property that is caused by the tenant's action or neglect. It includes damage, deterioration, and improvement (see ameliorating waste; equitable waste; permissive waste; voluntary waste). Landlords can take action against tenants who cause waste (see impeachable waste). The extent of a tenant's liability varies according to the kind of tenancy. Most tenants are liable for equitable and voluntary waste. Fixed-term tenants are also liable for permissive waste, as are yearly periodic tenants (but only to the extent that they must keep the premises wind- and water-tight). A tenant for life under a settlement is prima facie liable for ameliorating waste, rarely liable for permissive waste, and usually liable for voluntary and equitable waste (unless exempted or made “unimpeachable of waste” by the terms of the settlement).
2. See pollution.
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