Instructions
Please read the scenario carefully and answer ALL questions. Please make it clear when you are answering the next question.
Your word count is 2,000 words in total and you should include your word count in your answer. You can also make use of your 10% additional allowance. Your word count does not include your footnotes.
You may find that your answers to each of the 3 questions are of varying word length but this is nothing to worry about.
We do not expect you to spend the full 24 hours on this assessment.
Scenario
About 3 years ago Alice, her husband Brian, and Alice’s sister Doris, bought a house together following Doris’s health problems which left her unable to work and support herself. They pooled their resources and contributed equally to the purchase of the house which was registered in the joint names of Alice and Brian.
About 6 months ago, Alice and Brian separated when Alice found out about Brian’s affair with Carol. He moved in with Carol in her small house.
Alice started divorce proceedings and made a will leaving everything that she owned to her 3 adult children, Neil, Fiona and George, who are all married with children.
Sadly, Alice died last month following an illness that was only recently diagnosed. Amongst her papers is a letter from her solicitor confirming that they had sent a notice to her husband and to Doris to sever the joint tenancy which had also been registered with the Land Registry. Doris is continuing to live in the property alone and wishes to continue doing so.
Last week, Brian told his children, from whom he is estranged following his affair, that he would be selling the property as it was his now following Alice’s death. The children objected saying that they had a share in it. He disagreed but said that if they tried to stop him, then he and Carol would move in and live there. Either way, Doris, he said, would have to move out.
Alice’s son Neil lives in a village. He owned 2 houses, with large gardens, opposite each other with the only access to the houses being via a long farm style driveway from the main road. Neil occupies one as his family home and the other is occupied by a tenant, Peter, and his wife who both work locally. They moved in about 6 years ago when the houses were first built. The drive is owned by Neil and both families used it for access and usual residential purposes.
Last year when the lease came up for review Peter offered to buy the house hew was living in. Neil agreed and the transfer went through last year but no mention of access to the house was made in the transfer. Peter and his wife have now left their jobs and are using the large garden to grow produce which they sell from the garage of their home. They also sell other local produce and there are a number of daily deliveries using the driveway. There is also an increasing number of cars using the drive to visit the shop and Neil is getting fed up with the number of visitors and the noise they make.
When Neil spoke to Peter about it, Peter said that when he asked Neil about buying the house he mentioned that he was going to convert it into a small holding. Neil agrees but says that he did not realise that it would involve the sale of the produce from the land itself.
Meanwhile, since 2012 Alice’s other son George has owned properties which he rents out to businesses. The leases are commercial leases for typically around 5 years. Each lease provides obligations on the tenants to:
- pay the rent and
- not assign without the landlord’s consent and that the tenant and all subsequent assignees shall enter an agreement to act as guarantor for any breaches of covenant by an assignee.
There are also landlord’s covenants which include “carrying out repairs to communal areas and to the structure of the buildings”.
About a year ago George agreed to the assignment of a lease on the condition that the outgoing tenant entered into an Authorised Guarantee Agreement. The new tenant has failed to pay the rent for the last 9 months and George sent a bill to the outgoing tenant for the money owed. The response was that it was not his responsibility as he is no longer the tenant.
Following a health scare, George has decided that he wants to pull out of this business and move on. He knows that there are some major repairs that need doing for which the landlord is responsible. He has found someone who wants to buy his business and take on the leases. He is proposing to transfer all the leases to this new landlord and then to have no further responsibility for the leases. He hears through the grapevine that the proposed purchaser does not have a good reputation as a landlord and does not always promptly carry out repairs and maintenance.
He therefore wants to transfer the leases as soon as possible so that he is well out of it before the tenants find out about the situation.
Questions
Your answers must include detailed application with relevant authorities.
You must answer all questions.
- Advise Neil, Fiona and George whether:
- Brian can sell the property as he suggests and force Doris to move out.
- If Brian can sell the property whether they are entitled to any of the sale proceeds.
- If he and Carol do move in, can Neil, Fiona and George force a sale of the property if Doris is unable to continue living at the property.
- You are asked to advise Neil on:
- Whether the claim for an easement meets the requirements of Re Ellenborough Park?
- The methods of acquisition of an easement and which one(s) is/are the most likely here.
In the end, they agree that Neil will grant Peter a written easement to allow for access over the driveway for deliveries between set hours in the morning and for the shop to only open in the afternoons.
- The registration requirements for this easement.
3) (a) Advise George on what action, if any, he can take against the outgoing tenant and on what basis.
(b) If the lease had not expressly required an Authorised Guarantee Agreement before assignment, advise the outgoing tenant on what defence, if any, they can raise to the claim for rent arrears.
(c) Advise George whether transferring the reversion of the leases will release him from liability on the landlord’s covenants.
