Contracting out of LTA 1954 security of tenure when the warning notice is served late (s.38A)

Under s.38A(1) of the Landlord and Tenant Act 1954, the parties to a lease for a term of years certain may agree to exclude ss.24 to 28. By s.38A(3), the agreement is void unless the landlord serves the notice in Sch 1 to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 and the requirements in Sch 2 are met. Where the notice is served at least 14 days before the tenant enters into the lease (or becomes contractually bound, if earlier), a simple declaration is enough (para 3). Here the notice was served only six days before completion, so para 4 applies: the tenant or a person authorised by her must make a statutory declaration, before entering into the lease. Paragraphs 5 and 6 require the lease to contain or be endorsed with a reference to the notice and statutory declaration, and to the agreement itself.

Why A is wrong: A simple declaration suffices only where the notice is served at least 14 days before the tenant enters into the lease or becomes contractually bound.

Why B is wrong: Court approval of contracting-out agreements was replaced in 2004 by the notice and declaration procedure.

Why C is wrong: A notice served less than 14 days before is not fatal; the tenant can instead make a statutory declaration.

Why E is wrong: Any declaration must be made before the tenant enters into the lease or becomes contractually bound; it cannot follow completion.