Joint tenancy expires: can some of tenants leave?

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    #46
    Originally posted by Lawcruncher View Post
    But a change is not a new contract. If it were, the consideration would be the same as for the old contract.
    The change in rent is a tenancy variation. This is not binding on T unless by s.13 or in a Deed; past consideration is no consideration.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


      #47
      what about if the rent is put up?

      Comment


        #48
        Originally posted by fthl View Post
        what about if the rent is put up?
        That is exactly what we're discussing! Re-read post #46, please.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


          #49
          I am perfectly happy to accept the principle that where a lease is made by deed:

          (a) the rent can only be varied by deed; but that

          (b) equity will allow a variation where the variation is supported by fresh consideration; and that

          (c) equity will further intervene in the absence of fresh consideration if an estoppel arises.

          (See Central London Property Trust Ltd. v. High Trees House Ltd)

          I remain to be convinced that the above principle applies where the lease was not created by deed.

          Comment


            #50
            Originally posted by Lawcruncher View Post
            I remain to be convinced that the above principle applies where the lease was not created by deed.
            See your previous comment: As the old managing clerk I trained under would have said: "What is your authority for that proposition?"!
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment


              #51
              Originally posted by jeffrey View Post
              See your previous comment: As the old managing clerk I trained under would have said: "What is your authority for that proposition?"!
              Definitions:

              "Proposition 1": Absent fresh consideration or estoppel, a variation of the rent under a lease not created by deed can only be agreed by deed.

              "Proposition 2": Absent fresh consideration or estoppel, a variation of any term under a contract not created by deed can only be agreed by deed.

              "Proposition 3": A variation of the rent under a lease not created by deed can be agreed without a deed.

              "the Established Principle": Absent fresh consideration or estoppel, a variation of the rent under a lease created by deed can only be agreed by deed.

              I was not offering Proposition 3. I said I remain to be convinced that Proposition 1 is true.

              What is your authority for the proposition that the Established Principle can be extended to include Proposition 1?

              If Proposition 1 is true, it would seem to imply that Proposition 2 is also true.

              If Proposition 2 is true, Proposition 1 must also be true and Proposition 3 cannot be true.

              If Proposition 2 is not true, Proposition 1 (a particular instance of Proposition 2) cannot be true either and Proposition 3 must be true.

              I confess I can quote no authority for Proposition 3. Can you quote any authority for Proposition 1 or Proposition 2?

              Comment


                #52
                Keeping it simple, the propositions are that rent can be increased by:
                a. a Deed between L and T [binding both];
                b. a s.13 Notice [served by L and binding T because the 1988 Act says so]; or
                c. an informal method [not binding T because there is no consideration from L to T in exchange for T's obligation to pay the increase].
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #53
                  Originally posted by jeffrey View Post
                  Keeping it simple, the propositions are that rent can be increased by:
                  a. a Deed between L and T [binding both];
                  b. a s.13 Notice [served by L and binding T because the 1988 Act says so]; or
                  c. an informal method [not binding T because there is no consideration from L to T in exchange for T's obligation to pay the increase].
                  I agree a and b, but not that c does not bind tenant.

                  Comment


                    #54
                    Quote:
                    Originally Posted by fthl
                    what about if the rent is put up?
                    That is exactly what we're discussing! Re-read post #46, please.
                    Sorry, I wasn't being clear. Could the extra rent not be the required consideration?

                    Comment


                      #55
                      Originally posted by fthl View Post
                      Sorry, I wasn't being clear. Could the extra rent not be the required consideration?
                      No. If T agrees to pay it, what does L agree in exchange? That's the missing consideration!
                      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                      4. *- Contact info: click on my name (blue-highlight link).

                      Comment


                        #56
                        Ok, With you. so if they agree anything else (eg replacement fridge) then this could stand as the missing consideration?

                        Comment


                          #57
                          Originally posted by fthl View Post
                          Ok, With you. so if they agree anything else (eg replacement fridge) then this could stand as the missing consideration?
                          Yes- you've got it! (Please try to explain it to Lawcruncher)
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment


                            #58
                            Remember though that a variation in rent following fresh consideration is binding in equity only.

                            Let me start again. The problem I have is this: it is possible to create certain types of tenancy without a deed, or indeed without writing. I am having difficulty believing that the terms of such a tenancy can only be varied by deed when a deed was not needed to create them. It is quite possible that there is a rule that says:

                            Except where and to the extent that equity intervenes or statute allows, the terms of a tenancy, whether created by deed or not, may only be varied by deed.

                            I do not believe this to be a rule, but I am open to persuasion it is a rule if some authority is quoted to support it.

                            For the record I believe the following rule can be stated, since it is supported by the authority of Central London Property Trust Ltd. v. High Trees House Ltd:

                            Except where and to the extent that equity intervenes or statute allows, the terms of a tenancy, when created by deed, may only be varied by deed.

                            I feel I must also ask whether it is being suggested that any contract not made by deed can only be varied by deed if no fresh consideration is available to support the variation?

                            Comment


                              #59
                              Why the obsession with whether variation must be by Deed?
                              Yes, a Deed cures the 'lack of consideration' problem. If a letting not by Deed is to be varied other than by Deed, the variation is binding only if:
                              a. supported by contractual consideration; or
                              b. effective under s.13.
                              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                              4. *- Contact info: click on my name (blue-highlight link).

                              Comment

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