Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester on Commercial Business Leases
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 12 . . .
Leases - Method of Determination
Determination - by effuxion of time
A Lease for a fixed period or term will automatically determine when the fixed period expires. However, this rule is subject to the LTA 1954 and the LGHA 1989, which may prolong the term beyond the date it would otherwise end.
- LTA 1954 applies to most business Leases (and Part 1 of this Act may still apply to a long residential Lease at a low rent)
- LGHA 1989 now applies to most residential tenancies (in place of Part 1 of the LTA 1954)
Where an application is based on determination by effluxion of time, the application cannot be completed unless it takes account of this legislation.
How to make the application
In addition to the documents required, as stated in section: Points to consider on all application, Conveyancing Solicitors and Property Lawyers should lodge:
- confirmation that neither the LTA 1954 nor the LGHA 1989 affect the Lease or that it has determined in accordance with their provisions.
NB: Completion of panel 9 of the form CN1 provides this information.
- if the tenant of the leasehold estate has an option to renew the Lease (which may, for example, be the subject of a notice on the Property title deeds of a registered reversionary title), satisfactory evidence that the option has not been, and cannot now be, exercised.
Determination - on forfeiture
A Lease containing a proviso for re-entry or 'forfeiture clause' may enable a Landlord to re-enter the Property and forfeit the Lease, either because the tenant has not paid the rent or has breached some other covenant(s) in the Lease.
The Landlord may forfeit the Lease by taking Court Proceedings or by peaceable re-entry.
An interested person may apply to the Court for relief from forfeiture. However, this is not in itself a valid ground for objection to an application to Land Registry based upon determination on forfeiture.
How to make the application
In addition to the documents required, as stated in section: Points to consider on all applications, Conveyancing Solicitors and Property Lawyers should lodge the following documents:
If the forfeiture is based on a Court Order:
- the claim form (formerly the writ or summons) indicating the reason for the forfeiture
- a certified copy of the Court Order directing the forfeiture of the Lease, and
- the sheriff's return, or a statutory declaration or statement of truth, proving the facts which are stated to amount to re-entry on a stated date.
NB: The issue of proceedings does not amount to re-entry for these purposes.
If the forfeiture is based on peaceable re-entry:
- evidence by way of a statutory declaration or a statement of truth by a reliable person with full knowledge of the facts, proving the facts which, it is claimed, amount to a lawful re-entry on a specified date. This should include details of how the re-entry was effected and by whom.
- if the forfeiture is for non-payment of rent, the statutory declaration or statement of truth should establish:
* whether a formal demand was required and, if so, whether such a demand was made
* the amount of rent arrears and confirmation that this was sufficient to trigger the proviso for re-entry
- if the forfeiture is for breach of covenant other than non-payment of rent, the statutory declaration or statement of truth must establish:
* that the Landlord served the the requisite notice or instructed the Conveyancing Solicitors and Property to serve the requisite notice under section 146(1) Law of Property Act 1925 upon the tenant on a stated date. If the leasehold estate is not registered, satisfactory evidence that the person served was the tenant should be lodged
- in the case of a breach of a repairing covenant, that the service of the notice was known to the tenant, or to an under-Lessee where the tenant has only a nominal reversion, or to the person who last paid the rent due under the Lease, either on their own behalf or as agent for the tenant or under-Lessee, and that a time reasonably sufficient to enable the repairs to be executed had subsequently elapsed - see section 18(2) Landlord and Tenant Act 1927.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 14 (Manchester Conveyancing Solicitors Property Lawyers on Commercial Business Leases 14)
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