Common Law of Landlord and Tenant - Essay Example

Common Law of Landlord and Tenant Common Law of Landlord and Tenant Landlord & Tenant Act 1988 specifies the duties, responsibilities and procedures that must be followed in case a tenant feels the need to sublet or assign a property. The current economic situation has caused many landlords to be liable to pay damages for delayed consent of subletting and assignment of properties (Tye 2011, pp. 1), and as such, the subject needs to be analyzed at length. The case of Ursula the tenant, William the landlord and Ernie the assignee forms a basis for which the obligations of either party are examined.

Ursula followed due process and communicated her wishes to assign the property to Ernie in a letter to the landlord. William was also swift in his reply which stated that consent could not be accorded on the basis that Ernie could not afford the rent and that the business which she wished to set up could have offered competition to William’s business in another part of the town. In withholding consent, William was well within his legal right (Glendon 1982, p. 23). However, the reasons which he cited were unreasonable and could not constitute concrete ground for refusal of consent (The National Archives 2012).

The merits of the case suggest that an agreement was present between the tenant and the assignee. Such an agreement obviously included the previous terms of the covenant between Ursula and William. Hence, the negotiated rate that Ursula had with Ernie had to be well within the boundaries of the original contract. In denying consent, William did not mention anything to do with the terms of the contract signifying the fact that the terms were acceptable and the only reservation that he had was on Ernie?

s capability to pay rent which was not a matter for him to decide when consenting to the assignment. The fact that a person is not respectable and responsible can form a basis for denial of consent as was the case in The Royal Bank of Scotland v Victoria Street (No.3) Limited (28 October 2008). However, the terms of the contract between the parties usually require the tenant to have a reliable guarantor. The lack of the latter can form grounds for denial of consent but not the mere claim that the assignee is neither respectable nor responsible.

In denying consent on such an unreasonable ground, William could be liable to any damages that are suffered by Ursula. In Lombard North Central Plc v Remax Herbarne Limited (28 November 2008), the tenant won a claim that the landlord had unreasonably denied consent to sublet. The grounds on which the landlord denied consent were that it was not satisfied with the rent payable under the sublease. The court ruled that the rent that was proposed on the sublease was the market rent and thus was acceptable.

In this decision, it is clear that denying consent to assign or sublet on the grounds other than those that can be concretely proven does not hold sway with the court (Anderson 2012, pp. 14). The other reason given by William was that the business that Ernie wished to set up presented a conflict of interest as he had a similar business in another part of town. In the current market system and following the rules of fairness in competition, this ground is unreasonable too. In any case, the business which William ran was not in the same premises as the property in the case.

Therefore, a conflict of interest does not exist and such grounds cannot be considered reasonable in denying consent for assignment. The increase in cases of landlords being liable for denied consent is pegged on two premises (Casner et al. 2004, p. 403). The first is that the landlord might offer its communication late and as such, the tenant may have suffered damages due to the delay (Rabin 1984, pp. 57). The second is that the landlord may have offered little grounds for the denial details of which were partially in its communication.

A landlord cannot base refusal on any other grounds apart from those that were in the written communication (Ross 2009, pp. 6). In advising Ursula, a number of options present themselves. First, she may proceed with the transaction without the context, the result of which might be a breach in the contract which might leave her liable for the breach. The second is an application to the county court for a declaration that the landlord has withheld its consent. However successful the case is, it might be expensive.

The last option is to apply to the county court for damages occurring due to the breach of statutory duty by the landlord in its failure to comply with the provisions laid out in Section 1 of the Landlords and Tenants Act 1988 (The National Archives 2012). This is the best option since it presents additional remedies to the application for declaration where consent has been unreasonably denied. The additional claims that William threatens in case Ursula instigated any proceedings against him are irrelevant since only what appears in his written communication to Ursula is admissible in a court of law.

References Anderson, S. 2012. “15 common renter's rights.” Microsoft. Available at: http://realestate.msn.com/article.aspx?cp-documentid=13108370 [Accessed 1st February 2012] Casner, A.J. et al. 2004. Cases and Text on Property, Fifth Edition. Apsen Publishers, New York, NY Glendon, M.A. 1982. “The Transformation of American Landlord-Tenant Law.” 23 B.C. L. Rev. 503-05 Lombard North Central Plc v Remax Herbarne Limited [2008] EWHC 3161 (Ch); [2009] L&TR 14 (28 November 2008) Rabin, E.H. 1984.

“The Revolution in Residential Landlord-Tenant Law: Causes and Consequences.” 69 Cornell L. Rev. 517 Ross, J. 2009. “Applications To Assign Or Sublet - Landlords Beware.” Forsters Newsletter, Available at: www.forsters.co.uk, [Accessed 1st February 2012] The National Archives 2012. Landlord and Tenant Act 1988 c. 26Section 1. Available at: http://www.legislation.gov.uk/ukpga/1988/26/section/1[Accessed 1st February 2012] The National Archives 2012. Landlord and Tenant Act 1988 c. 26Section 4.

Available at: http://www.legislation.gov.uk/ukpga/1988/26/section/1[Accessed 1st February 2012] The Royal Bank of Scotland v Victoria Street (No.3) Limited [2008] All ER (D) 280 (28 October 2008) Tye, S. 2011. “Your rights when subletting.” News on the Block. Available at: http://www.newsontheblock.com/service-charges/16677/your-rights-when-subletting.thtml [Accessed 1st February 2012]