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 13 . . .
Leases - Method of Determination
Determination - on forfeiture
How to make the application
If the forfeiture is based on peaceable re-entry:
- in the case of a breach of a repairing covenant contained in a Lease of which three years or more remained unexpired at the date of the notice served under section 146 Law of Property Act 1925, that the notice contained the required statement that the tenant was entitled to serve a counter-notice claiming the benefit of the Leasehold Property (Repairs) Act 1938 and did not do so
- that the tenant failed to comply with the notice served under section 146 Law of Property Act 1925.
- If the Premises are let as a dwelling, the only lawful method of enforcing a right of re-entry while anyone is lawfully residing there is by obtaining a Court Order - see section 2 Protection fro Eviction Act 1977. Therefore, if the premises comprise a dwelling, the statutory declaration or statement of truth must establish either:
* that no one was residing in the premises or any part of them, or
* if someone was, that they were not lawfully residing there.
- If the Lease is a residential Lease, the statutory declaration or statement of truth must establish that the following provisions either do not apply or have been complied with:
* section 81 Housing Act 1996, as amended by the CLRA 2002, limits the Landlord's right t forfeit a residential Lease where there are arrears of service charge which are disputed by the tenant. The Landlord may not exercise the right of re-entry until the service charges have been determined by a Leasehold Valuation Tribunal or Court and 14 days have elapsed beginning with the day after either:
* the end of the term for brining an appeal against the decision, or
* if the decision is appealed against, the determination of the appeal and the expiry of the time for bringing a subsequent appeal, or the appeal being abandoned or otherwise ceasing to have effect.
- section 166 CLRA 2002 provides that a tenant under a long Lease of a dwelling is not liable to make a payment of rent under the Lease unless the Landlord has given the tenant a notice relating to the payment and the date on which they are liable to make the payment is specified in the notice. The notice must comply with the requirements set out in section 166.
- section 167 CLRA 2002 provides that a Landlord under a long Lease of a dwelling may not forfeit the Lease for failure by the tenant to pay rent, service charge or administration charges unless the amount exceeds a prescribed sum, or has been unpaid for a period in excess of a prescribed period.
- section 168 CLRA 2002 provides that a Landlord under a long Lease of a dwelling may not serve a notice under section 146 Law of Property Act 1925 for breach of covenant by the tenant unless the tenant has admitted the breach, or a period of 14 days has elapsed after a Leasehold Valuation Tribunal or Court has determined that the breach has occurred.
NB: Any relevant documentation should be produced as exhibits to the declaration or attachments to the statement of truth.
Determination - by notice
A Lease for a fixed term may contain an option, usually called a 'break clause' allowing either one or both parties to the Lease to determine the Lease before the expiry of the fixed term. The clause is usually only exercisable by written notice issued by the Conveyancing Solicitors and Property Lawyers.
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 evidence of determination of the Lease by notice in accordance with the terms of the Lease. This can take the form either:
- a copy of the notice receipted by the Landlord / Tenant to whom it was sent
- a certificate by the the Conveyancing Solicitors and Property Lawyers for the applicant stating that a particular notice was served on the Landlord / Tenant detailing the method and date of service. Conveyancing Solicitors and Property Lawyers should enclose a copy of any notice with the certificate, or
- a statutory declaration by the applicant, exhibiting a copy of the notice served and detailing the method and date of service.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 15 (Manchester Conveyancing Solicitors Property Lawyers on Commercial Business Leases 15)
Please telephone Paul on 0161 866 8999 if you require any further information.
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