The Landlord and Tenant (Covenants) Act 1995 (LTCA 1995) broadly enacts the principle that covenants should be enforced only by, and against the persons who are the landlord and tenant for the time being. The purpose of this essay is to analyse the pre Act common law provisions of enforcing a covenant after an assignment alongside the post 1995 statutory regime, to gain an understanding of whether the statutory reform was necessary or not in giving more equality of bargaining power between the landlord and tenant.
The pre LTCA 1995 common law rules were based on three basic principles. The first of these was privity of contract. This term described the relationship between the original contracting parties. All the covenants in the lease remained
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There was an increase in rent review clauses and increasing usage of surety's (a third party obligation which takes responsibility of performance) and as a result landlords sought to shift the risk on to other parties. The original tenant had very little power in protecting themselves from breach of covenants made long after they had disposed of their interest. The first assignor could take an express indemnity from his assignee enabling liability to be revisited on default, shifting the balance of power back to the tenant. However the harsh reality of this defence can be shown in Centrovincial Estates plc v Bulk Storage ltd which results in injustice. The original tenant was held liable for a substantial rent increase due to a rent review clause being altered in the lease by the assignee which was originally granted. The former tenants could argue the rule of variation of the lease to protect themselves. This would result in surrender of the lease and a new one would be granted, therefore removing the liability of the former tenant. This position could however be marked with the landlords very powerful remedy of forfeiture were the lease is brought to an end in the event of non compliance if a tenant did not comply with a covenant. It was proposed that contractual liability will not extend to any increase rent in relation to a relevant variation of the …show more content…
The Bill was originally presented to parliament in a form did not embody the changes needed to reflect the agreement made between the British Property Federation and the British Retail Consortium. In essence, the Bill which became law through the Landlord and Tenant Act 1995 eliminated continuing contractual liability between former tenants under new leases in return for landlords having more control over the conditions which a lease could be sighed to, however this was only applicable to commercial leases only. The constraints of the parliamentary timetable in the House of Commons meant that very substantial amendments had to be rushed through in the House of Lords without interested parties having time to consider and make sensible representations. The result was an Act drafted quickly and it has been argued that because of this the proposers will repent of it at their leisure as their will still be landlords which seek to evade the law regardless of the passing
There is clear disagreement over the question of whether Target v Redferns was correctly decided. One point of view is that “Lord Browne-Wilkinson took a false step in Target when he introduced an inapt causation requirement into the law governing … substitutive performance claims" (per Professor Charles Mitchell in a lecture on "Stewardship of Property and Liability to Account" delivered to the Chancery Bar Association on 17 January 2014); the other is that “I consider that it would be a backward step for this court to depart from Lord Browne-Wilkinson's fundamental analysis in Target Holdings” (per Lord Toulson in AIB Group (UK) Plc v Mark Redler & Co Solicitors [2014] UKSC 58). Critically discuss the competing arguments. Introduction The law is ever changing and as such, new principles arise from time to time.
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
-Common Law: the “law of the land”(Pool 127), which was built up over many centuries
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
According to LD Online (2015), Public Law 94-142, also known as Education for all Handicapped Children Act (EHA), was passed in 1975. Since then, the law has taken on many changes in order to improve its effectiveness, and is now known as the Individuals with Disabilities Education Act of 2004 (IDEA 04). The original Public Law 94-142 guaranteed a free and appropriate public education to each child with a disability from the age 3 to 21 (LD Online, 2015). It is required to make efforts towards improving how children with disabilities are identified and educated, as well as provide evaluations for the success of those efforts. Furthermore, the law provided due process protections
In the early 1900s, “restrictive covenants” more specifically racially restrictive covenants were legally enforceable agreements that prohibited landowners from leasing or selling property to minority groups, at that time namely African Americans. The practice of the covenants, private, racially restrictive covenants, originated as a reaction to a court ruling in 1917 “which declared municipally mandated racial zoning unconstitutional . . . leaving the door open for private agreements, such as restrictive covenants, to continue to perpetuate residential segregation” (Boston, n.d.). It was more of a symbolic act than attacking the “discriminatory nature” (Schaefer, 2012, p. 184) of the restrictive covenants, when the Supreme Court found in the 1948 case of Shelley v Kraemer that racially restrictive covenants were unconstitutional. In this particular case, a white couple, the Kraemers lived in a neighborhood in Missouri that was governed by a restrictive covenant. When a black couple moved into their neighborhood, the Kraemers went to the court asking that the covenant be enforced. In a unanimous decision, it was decided, “state courts could not constitutionally prevent the sale of real property to blacks even if that property is covered by a racially restrictive covenant. Standing alone, racially restrictive covenants violate no rights. However, their enforcement by state court injunctions constitutes state action in violation of the 14th Amendment” (Shelley v. Kraemer, 1948). Even though the Supreme Court ruled that the covenants were unenforceable, it was not until 1968 when the Fair Housing Act was passed that it become illegal (Latshaw, 2010). Even though today it is illegal, it might appear that we still have an unspoken...
Those who are to benefit from the covenant in today’s law can now be referred to by some generic description a description of class for example the 'owners of Hudson' however they must be in existence when the covenant is made and they must also be identifiable moreover the covenant must clearly be intended to be made with them as well. The cases of (White v Bijou Mansions) (1937)4 and (Amsprop Trading v Harris Distribution) (1997)5 are examples which illustrate and support the view of the LPA 1925, s.56(1).... ... middle of paper ... ... Benefits of a covenant may also be subject to express assignment at common law as long as it is not a personal covenant; it must also be done in writing and notice must be given to the covenantor under s.136 LPA 19259.
There are a lot of reasons why I chose to pursue pharmacy as my career and they all point to the most important reason: pharmacy is a great fit for my life and is something I have become increasingly passionate about. It started when I was researching careers with my parents and my dad suggested pharmacy and, simply put, it sparked my interest because at the time it was one of the few things I thought I would not hate doing. A healthcare career has always been where I put myself in the future, mainly because most of my family members are in the healthcare field. However, I have never been one that could directly help the wounded or deal with anything gory, but am very intrigued by the growing science of pharmacy. As I continue exploring pharmacy, the more I enjoy learning about it and feel like I could excel in this career.
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Current English land law on the co-ownership of interests of land has developed quite a contentious history pertaining to the relationship between the acquisition of rights and the quantification of the shares. In terms of co-ownership, there are huge variances and legal consequences when legal ownership is in one person’s name compared to two. These differences can be seen in various landmark cases which have created precedent and developed refined principles such as Lloyds Bank plc v Rosset and the Stack v Dowden. For the courts, it has often been relatively complex to distinguish between constructive and resulting trusts and to decide on the procedure to be used for the quantification of equitable entitlement once the decision to impute has been established. The quantification of resulting trusts is carefully considered in both, Midland Bank v Cooke and Stack v Snowden. In many co-ownership cases dealing with the acquisition of rights and the quantification of shares, the outcomes aren’t always proportionate. Reasons can include the ambiguities in the identification and changes of common intention and contributions types. In speaking to this issue, Baroness Hale stated in Stack v Dowden that “each case will turn on its own facts” and furthermore elaborated on the conditions for a common intention construct arising. It is furthermore important to critically discuss the repercussions these cases have for the future of co-ownership law to reconcile existing sources of confusion.
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
HILLIARD, J. And O’SULLIVAN, J. (2012) The Law of Contract [Online] 5th Ed. Oxford: Oxford University Press. Available from - http://books.google.co.uk/ [Accessed: 2nd January 2014]
The intention of this essay is to explain the process of law reform within the English legal system. The way in which the activity of parliament and that of the judiciary affects the way in which laws are reformed in the UK will be also discussed. The common law system in the UK means that the UK's primary legal principles have been developed by the judiciary rather than by parliament. However, as parliamentary sovereignty is an important key principle of the UK constitution parliament is the supreme legal authority in the UK. Parliament can create, change or repeal any law and generally speaking the judiciary cannot overrule legislation that has been passed by parliament.
The first point to note when analysing occupiers’ liability is that originally it was separate to the general principles of negligence which were outlined in Donoghue v Stevenson .The reason for this “pigeon hole approach” was that the key decision of occupiers’ liability, Indermaur v Dames was decided sixty six years prior to the landmark decision of Donoghue v Stevenson . McMahon and Binchy state the reason why it was not engulfed into general negligence, was because it “… had become too firmly entrenched by 1932 … to be swamped by another judicial cross-current” Following on from Indermaur v Dames the courts developed four distinct categories of entrant which I will now examine in turn.