Property Investigation
This property investigation is carried out on the freehold and leasehold documents of Somerset House 18 Canynge Road Clifton. It seeks to investigate the rights and interests in the clauses.
In Annex 1, the type of interest Entry 1 of the Charges Register of the freehold title AV 137293 provides that the conveyance of part of the property is subject to the rights of way. The type of interest in property arising out of such provisions is termed as easements (Re Ellenborough Park [1956] Ch 131.). An easement is a right that guarantees another person to use another person’s land in a particular way. It is a non-possessory interest in the owner’s land to use the land to a particular extent. The owner of the property is referred to as the dominant owner while the user is referred t as the servient owner (Holdsworth., 2002, 265). For such rights to exist, there has to be a dominant and servient land. This means that the dominant land must accommodate servient land (Keppell v Bailey (1834) 2 My & K 517 at 535). Thus, it’s a right appurtenant to one piece of land and exercisable over another.
There must be a dominant land that uses or acquires rights from the servient land. No easement cannot exist independently in one land. There is no legal requirement that the servient land is registered under a specific title. What is required is that the servient land serves the dominant land. Thus, the dominant land and the problem owners exercise these rights on the servient land. In an easement, the servient land should accommodate the dominant tenement. The servient land should allow and accord the dominant land the use and enjoyment of the right of the land.
Where the enjoyment from the land is not clear, there should be a connection between the use of the servient land and the benefits. This was held in the case of Moody v Steggles (1879) 12 Ch D 261, where the use of a signboard was held to be an easement as the use of the signboard was beneficial to the businesses in adjoining buildings. Additionally, the dominant and servient land must be owned by different people. Moreover, the two plots of land cannot be held or owned by the same person. The tenant cannot claim to have an easement where the dominant and servient tenants were owned by the same landlord.
Moreover, an easement has a reasonable closeness between the lands and cannot exist where the lands in question are too far apart too remote. They should be nearby between the dominant and servient land. The rights should be capable of forming the subject matter of a grant. This requirement is important because it ensures there is certainty and clarity. Furthermore, it ensures that the land in the case should be capable of being an easement, as the easements do not arise simultaneously and do need a prescription (Wood & Anr v Waddington [2015] EWCA Civ 538). This has been done in the lease of agreement which prescribes a lane, colored brown on the plan to have such interests. Such interests are transferred when there is a conveyance of the property (Martin Harry Bradley, Rosemary Diane Bradley v Peter Greenwood Heslin, Marianne Heslin [2014] EWHC 3267). This is evident in Annex I. The right of way is to be used in an assessor manner. This is because it serves as a pathway or lane on the land of the dominant owner.
Concerning the covenants of the lease of Somerset House 18 Canynge Road (Annex 3). Clause 19 contains a qualified contract. A qualified lease is one where any changes to the lease or the nature of the property require the landlord’s consent. This implies that the landlord’s consent cannot be withheld unreasonably (Gill, 2005, 15) It provides that the tenant may not alter the property without the landlord’s consent. Per section 19 of the 1927 Landlord and Tenant Act, such covenants prohibited dispositions without the landlord’s approval to the proviso that such consent may not be withheld unreasonably. The lease is not an absolute covenant as per clause 19.4, the tenant has the right to alter the property to some extent but provided it seeks the landlord’s consent (Shaw, 1988, 918).
Clause 23 of the agreement regards the use of the property. It is essentially related to the issue of the landlord’s consent. For instance, it reinforces an absolute covenant laying out situations where the tenant cannot act on the property. Under sub-clause (2) there is an absolute restriction on subletting, selling of illegal substances, and keeping pets among other activities. The landlord is well within his rights to do so as the wording of the clause can be interpreted to provide for an absolute covenant (F W Woolworth & Co Ltd v Lambert [1936] 2 All ER 1523 at 1536).
Clause 17 relates to the obligation to repair and maintain the property. Generally, the tenant has a property right that is fit for habitation (Smith v Marrable (1843) 11 M&W 5; 152 ER 693.). Thus, where there is a need for repairs or maintenance, the general rule is that the landlord bears the duty to repair. However, the tenant is also required to ensure that he/she maintains the property and that damage does not occur owing to his/her negligence (British Telecommunications plc v Sun Life Assurance Society plc [1995] 4 All ER 44). While the duty to carry out repairs under clause 17 relates t to maintaining the state of the property, it does not extend to pay for repairs that are covered under the insurance policy.
Clause 18 relates to decorations. The duty to decorate is not necessarily a binding requirement in the common law. However, the lease may make provisions relating to decorations. As such, it will depend on the circumstances of the case and the terms of the contract. Where the lease requires decorations to be undertaken within a stipulated time frame a failure to act within this contract could be viewed as a breach (Rugby School (Governors) v Tannahill [1934] 1 KB 695). In the present case, the tenant is obligated to carry out decorations as reasonably as necessary and use good quality materials. This clearly shows that the contract lays out a time frame and a standard of decorations and materials to the reasonable satisfaction of the landlord.
Clause 41 relates to a breach in the obligation to repair and maintenance. The landlord can carry out inspections to ensure the state of the property meets the contractual requirements as to fitness. Subsequently, repair or notice of repair should be given at the time of inspection and possible repairs. This is evident from the provisions of clause 41. In the present case, the landlord is required to give the tenant notice of defects according to an inspection. Additionally, as is the general rule, the landlord may pay for the repairs but later have the costs as debt from the tenant (City Properties Ltd v Greycroft Ltd [1987] 1 WLR 1085).
Concerning the landlord’s covenant at clause 36 of the lease of Somerset House 18 Canynge Road (Annex 3), the clause related to the right of entry. Entry generally refers to a situation where the landlord seeks to take possession of the property. Under a lease, there is a transfer of rights to the tenant from the landlord (Oceanic Village v United Attractions [2000] 1 All ER 975). This transfer of rights is regained when the right to entry is exercised. In Shiloh Spinners v Harding [1973] AC 691, the court held that a right of entry may be reserved by the covenantee against the covenantor exercisable in the event of a breach of the contract. In the present case, clause 36 allows the landlord to exercise the right of entry after giving reasonable notice and provided it causes as little of an inconvenience as possible. The landlord is also under an obligation to reimburse the
Finally, the mechanics of the rent review are set out in clauses 1.1 and 4 and Schedule 4 of the lease of Somerset House, 18 Canynge Road Clifton (Annex 3). Rent review provisions specify the times during a lease when the rent can be reviewed and altered to reflect the ever-changing economic climate. This critical function can help to guarantee that the rent paid under the lease stays commercially competitive. A well-drafted rent review provision is essential when granting or entering into a long-term lease to safeguard both the tenant’s and landlord’s future rights (Adams, A.T., Booth, P.M., and MacGregor, B.D., 2003, 622). There are different types of reviews ranging from index-linked, turnover, or fixed rent reviews. The approach under Annex 3 is an open market rent as agreed under schedule 4. As such, rent is established in line with open market circumstances at the time of the review under this model. This is accomplished by comparing rentals charged on comparable homes in comparable localities (Coors Holdings Ltd v Dow Properties Ltd [2007] EWCA Civ 255). According to clauses 1.1 and 4, the tenant is under an obligation to pay annual rent, and the rent review is done annually based on the market price of comparable properties.
Reference
Holdsworth, W.S., 2002. A historical introduction to land law. The Lawbook Exchange, Ltd.
Adams, A.T., Booth, P.M., and MacGregor, B.D., 2003. Lease terms, option pricing, and the financial characteristics of a property. British Actuarial Journal, 9(3), pp.619-635.
Cases
City Properties Ltd v Greycroft Ltd [1987] 1 WLR 1085.
Coors Holdings Ltd v Dow Properties Ltd [2007] EWCA Civ 255.
Oceanic Village v United Attractions [2000] 1 All ER 975.
Shiloh Spinners v Harding [1973] AC 691.
Re Ellenborough Park [1956] Ch 131.
Keppell v Bailey (1834) 2 My & K 517.
Moody v Steggles (1879) 12 Ch D 261
Wood & Anr v Waddington [2015] EWCA Civ 538.
Martin Harry Bradley, Rosemary Diane Bradley v Peter Greenwood Heslin, Marianne Heslin [2014] EWHC 3267.
Rugby School (Governors) v Tannahill [1934] 1 KB 695.
F W Woolworth & Co Ltd v Lambert [1936] 2 All ER 1523 at 1536.
Smith v Marrable (1843) 11 M&W 5; 152 ER 693.
British Telecommunications plc v Sun Life Assurance Society plc [1995] 4 All ER 44).
