Mistake, frustration and implied conditions in leases

Discusses the Court of Appeal decision in Graves v Graves on determination of a tenancy by reason of common mistake and frustration. Reviews earlier case law regarding the effects on a contract of a common mistake or frustrating event. Considers the effect of the common mistaken belief held by the parties in Graves when executing a tenancy agreement that the tenant would be entitled to housing benefit, in particular whether by reason of it a condition was implied into the tenancy that the contract would be terminated if housing benefit was unavailable.

Subrogation and non-payment of rent

Explains the equitable doctrine of subrogation as it applies to tenants, assignees and landlords. Outlines the basic principle of subrogation and examines how the principle affects the legal position of the original tenant, the tenant's assignee, the tenant's surety and the original landlord.

Termination of tenancies for tenant default: Law Commission's draft Bill

Reviews key proposals of a draft Bill set out in Command Paper: The Law Commission: Termination of Tenancies for Tenant Default (Cm.6946), aimed at replacing the existing law on forfeiture of tenancies. Summarises the main elements of the proposed termination action by landlords, the events justifying such an action, the time limits for serving default notices, the revised range of court orders available and the considerations influencing which type of order to make. Examines the position of qualifying interest holders and the circumstances in which summary termination notices are prohibited.

Without prejudice: opening shots and negotiating documents

Reviews case law which has provided guidance on the law relating to without prejudice communications in landlord and tenant disputes. Considers: (1) the extent to which without prejudice communications are inadmissible in subsequent litigation; (2) exceptions to the without prejudice rule; (3) the specific context in which the rule applies; (4) the need for a dispute or negotiation to have arisen; (5) the prohibition on using "without prejudice" as an opening shot; and (6) the effect of changing the negotiating basis.

Oral agreements: estoppel, constructive trusts and restitution

Analyses the House of Lords judgment in Cobbe v Yeoman's Row Management Ltd in relation to claims by the prospective purchaser under an oral agreement for sale of a block of flats based on proprietary estoppel, a constructive trust and common law restitution brought against the owner of the property who sought to resile from the agreement after the purchaser had, at considerable expense, obtained planning permission to redevelop the property in reliance on assurances given by the owner that if permission was granted the sale would be honoured.

Contractual termination of leases: lessons from the Commonwealth: Pt. 1

This, the first part of a three-part article on contractual termination of leases, considers the extent to which determination of a lease in accordance with the contract law principles of frustration and acceptance of a repudiatory breach has been accepted by Commonwealth courts. Reviews the approaches adopted by the courts in Canada, the US and Australia to the application of contractual principles to landlord and tenant disputes.

Options to renew leases: time for legislative relief?

Argues that England should follow the example of Australia and New Zealand and give the courts statutory power to grant a tenant relief against forfeiture of the right to exercise an option to renew a lease by reason of the tenant being in breach of covenant. Suggests the legislative provision introducing this power should adopt wording mirroring that in the Law of Property Act 1925 s.146(2).

Virtual assignments: breach of covenant against parting with or sharing of possession

Comments on the Chancery Division decision in Clarence House Ltd v National Westminster Bank Plc on whether the alienation covenant in a lease of commercial premises had been breached by the tenant effecting a virtual assignment of it, under which all the economic benefits and burdens of the lease were transferred to a third party without there being any actually assignment of the leasehold interest or change in occupancy.

Contractual termination of leases: lessons from the Commonwealth: Pt. 2

This, the second part of a three-part article on contractual termination of leases, considers the extent to which English courts have allowed the contract law principles of frustration and acceptance of a repudiatory breach to be applied to leaseholds. Distinguishes cases involving a repudiatory breach by a landlord from those where the tenant is the one in breach.

Contractual termination of leases: lessons from the Commonwealth: Pt. 3

This, the third part of a three-part article on the contractual termination of leases, examines, with reference to UK and Commonwealth case law, the connection between contractual termination and the provisions of legislation including the the Landlord and Tenant Act 1954 Pt II relating to forfeiture and termination of business tenancies. Considers why contractual termination by acceptance of a repudiatory breach is a necessary development to protect tenants in the event of a landlord's significant default.

Duty to mitigate in leasehold law

Discusses by reference to case law, including Commonwealth authorities, the rights and duties of landlords where demised premises are abandoned by a tenant who has defaulted on the rent, including the remedies available to the landlord, the limitations on his right to sue for loss of rent due between abandonment and expiration of the term, and the applicability of the contractual doctrine of mitigation of damages in leasehold law. Examines the Court of Appeal decision in Reichman v Beveridge on the duty of mitigate loss in an action merely seeking recovery of rent as it accrues due.

Jackson v JH Watson Property Investment Ltd.

Comments on the Chancery Division decision in Jackson v JH Watson Property Investment Ltd on whether a landlord was liable in nuisance to a long leaseholder in respect of damage caused to the demised property by a building defect which pre-dated the grant of the lease or whether the principle of caveat lessee applied. Considers whether the defect amounted to "disrepair" within the meaning of the landlord's repairing covenant.

Too much formality?

Reflects on problems created by the formalities applicable to leases, with reference to the exceptions to the rule that leases be made by deed and the position of tenants paying rent under a void lease. Considers possible proposals for simplifying the system, including the introduction of a single requirement that all leases be in writing, abolishing the need for a deed when assigning a tenancy and reforming the right of tenants under a short lease to oblige landlords to supply written details of the tenancy terms.

Resulting trusts, joint borrowers and beneficial share

Reviews case law illustrating the courts' approach to beneficial ownership of property purchased in joint name by means of a joint mortgage but without any declaration of beneficial interest, the resulting trust and joint beneficial interest presumptions. Contrast the approach adopted in cases where one party made no contribution to the mortgage payments with those where both parties made a contribution. Highlights the courts' treatment of the right to buy discount afforded tenant purchasers and property purchased as a commercial venture rather than a home.