#4879 - Security Of Tenure Diagram - Property Law and Practice

Security of tenure diagram 1) Draw a timeline expressing the key dates 2) Does the 1954 Landlord and Tenant Act apply? a) 'Today's' date / notice service date The date stipulated in the question - 31st January 2003 b) The date the lease started The date stipulated in the lease - 24th March 1993 c) The Contractual Expiry Date (CED) of the lease 10 year lease 'from and including' - 24th March 1993 The lease will start on 24th March 1993 and will expire the day before that date in the relevant year - 23rd March 2003 10 year lease 'from' - 24th March 1993 The lease will start the next day, on 25th March 2003 and will expire the day before that date in the relevant year - 24th March 2003 d) The earliest and latest date the SCD (suggested commencement date) or STD (suggested termination date) can be Earliest - 6 months from service of notice (today) but not before the CED - 31st July 2003 a) Requirements - s.23(1) TLA 1954 1) The tenant has a tenancy Latest - 12 months from service of notice (today) but not before the CED - 31st January 2004 2) The premises are occupied by the tenant 3) For the purposes of a business being carried on b) Tenancies excluded from protection of 1954 act - s.43 LTA 1954 1) Tenancies at will - s.43(1) LTA 2) Tenancies of agricultural buildings - s.43(1) LTA 3) Mining leases - s.43(1) LTA 4) Service tenancies - s.43(2) LTA 5) Fixed term tenancies not exceeding six months - s.43(3) LTA 3) What two rights does the 1954 Act give a tenant? Rights conferred s.24(1) TLA 1954 1) The tenant's tenancy will continue after the expiry date in the lease (CED) until it is terminated in one of the ways specified by the 1954 Act 2) The tenant's has the right to apply for a new tenancy on termination of the current tenancy 4) Check whether the lease contains a term 'contracting out' of the 1954 Act? Requirements for contracting out - s.38A LTA a) Long procedure 1) Landlord must serve a warning notice on the tenant at least 14 days before the tenant becomes bound to enter into the lease (before the tenant signs the lease) 2) The tenant must sign a simple declaration stating it has received and accepts the consequences of the notice 3) The lease must then contain: a) Wording that the parties have agreed to exclude security of tenure; and b) Reference to both the warning notice and the tenant's declaration b) Short procedure 1) Landlord must serve a warning notice on the tenant at any time (can be less than 14 days before tenant is bound to enter into the lease) 2) The tenant must sign a statutory declaration before an independent solicitor stating it has received and accepts the consequences of the notice 3) The lease must then contain: a) Wording that the parties have agreed to exclude security of tenure; and b) Reference to both the warning notice and the tenant's declaration Consequences of contracting out of 1954 act 5) Check whether a s.25, s.26 or s.27 notice has already been served Even if the lease qualifies for protection under the 1954 act, it will not be given any rights under it If a s.25 or s.26/s.27 has already been served, then the receiving party cannot served a s.26/s.27 or s.25 (respectively) in response. 6) Terminating a tenancy which is protected under the 1954 act Landlord serving a s.25 notice A Landlord's hostile s.25 notice a) It will state the landlord opposes a new tenancy (a hostile notice) b) Has to be served on the tenant by the competent landlord - s.44 LTA c) Has to be in the prescribed form d) Has to be served 'today' e) Will propose a termination date. The suggested termination date of the lease (STD) specified in the notice: 1) Cannot be less than 6 months and not more than 12 months from the date the notice is served 2) Cannot precede the original expiry date (CED) f) As the landlord is opposing a new tenancy, the notice must state the statutory grounds on which the landlord intends to rely g) An application should be made to court either by: 1) The landlord - Who will be applying for the termination of the tenancy. The tenant will need to challenge this application if he wants a new tenancy or to holdover - s.29(2) LTA 2) The tenant - Who may wish to apply for a new tenancy and wants the court to dismiss the grounds for termination cited by the landlord. The landlord will need to challenge this application if he still wants to terminate the tenancy - s.24(1) LTA h) The application to court can be made any time after service of the s.25 notice but must be made by the STD specified in the notice - s.29A LTA This deadline can be extended by agreement in writing between the parties, but must be agreed before the STD passes - s29B LTA This also extends the STD contained in the s.25 notice i) Once an application to court has been made by one party, the other party cannot submit a further application to court.