Leases and Tenancy Agreements
Leases and Tenancy Agreements
Leases and Tenancy Agreements cover a wide range of property lets, both for houses and in commercial situations. They can vary from medium term leases of commercial premises (such as department stores, shopping malls, office blocks and factory premises), to shorter term leases of shops and offices, domestic leases for the renting of a private house, short term tenancy agreements, agricultural and crofting tenancies tenancies of allotment gardens and even licences to occupy.
The law relating to Landlord and Tenant in both business and domestic properties is extremely technical and the relevant regulations must be strictly observed if your interests are to be best protected.
We can advise and prepare Leases and Tenancy Agreements for you (whether you are a Landlord or Tenant), deal with rent reviews, lease renewals, claims for dilapidations, court proceedings for recovery of possession, arrears of rent, breaches of covenant (e.g. to repair and insure or to use only in a specified manner), etc.
• The tenant under a lease breaches his obligations, and the landlord wishes to terminate the lease. Wise landlords will have inserted a specific clause into the lease saying that in the event of a number of things occurring, including “any breach by the tenants of any of their obligations under this lease” then the lease shall become null and void. Often, however, it is not as simple as this and many legal complexities can arise causing difficulties for both landlord and tenant alike.
• What happens if there is a lease to a partnership, and there is a change in the membership of the partnership? Is the lease brought to an end? Leases to partnerships must be approached with great care to make sure that the lease continues in these circumstances.
• A landlord may believe he only has to concern himself with the tenant and no-one else. Certain legislation exists in relation to spouses, co-habitees and sub-tenants which are not always appreciated. A number of problems await the unwary landlord.
• Spouses and co-habitees. If the tenancy is in the sole name of one person, the spouse of that particular person will almost certainly have rights to occupy the house as well – even though their name does not appear anywhere on the lease document itself. That spouse may have the right to live in the house and that right may continue as long as the tenancy continues. This can apply to any house, caravan, houseboat or other structure which has become a family residence. Accordingly, if there is a spouse, the landlord should not assume that if the tenant comes in to give up the tenancy and signs the necessary forms, that that is an end to matters. The spouse may still have the right to occupy the property.
A person’s co-habitee may have certain limited rights to occupy a house which is rented by his or her partner.
• What about Notices to Quit? The common features of all forms of residential tenancies are that, if tenants fail to remove themselves from a property after they have been served with the appropriate
Notices, they cannot be evicted from the property without an order from the Court. Service of the proper Notices on the tenant by the landlord in a form which is laid down by law is crucial. People with a mental illness (and other individuals who may need Social Work services) have a legal right to a Community Care Assessment. This is a compulsory statutory duty of the Social Work Department.
If the Local Authority is the landlord, they have a statutory duty to assess a person’s needs. If a proper Care Assessment has not been carried out, the tenant may have a valid defence to an action of eviction by the Local Authority.
• Does the Council not have a duty to house people? Not everyone. In some circumstances, a Local Authority has a duty to provide accommodation for a child and a question may arise as to whether an action of eviction by a Local Authority is in breach of their duty to promote the child’s basic welfare. If a person has intentionally made himself homeless the Local Authority may not have any duty to re-house.
These are just a tiny fraction of the number of situations which might arise. You can, therefore, see that the law in relation to both commercial and residential lease agreements is extremely complex. There may be many legal defences open to tenants who are, or are alleged to be, in breach of a Tenancy Agreement, for example, in rent arrears. A confrontational approach may not always be the best option and resolution of the dispute by way of negotiation is often successful and less expensive. We are able to offer advice and assistance in each of these difficult areas of the law.