Protected Business Tenancies Flashcards
How to qualify for protected tenancy
- must be a tenancy (ie not license or tenancy at will)
- must be occupied by tenant
- occupation for purposes of a business
Excluded tenancies
Agricultural leases
Mining leases
Service tenancies
Fixed term tenancy of 6 months or less (but can gain security if in occupation of 12m or more)
Can you contract out fixed term tenancy
Yes
Can you contract out periodic tenancy
No
Procedure for contacting out
- LL serve warning notice on T in prescribed form detailing consequences of contracting out before parties complete
- Tenant provide declaration in prescribed form to LL before completion.
- if lease completion is 14 days from date of warning - simple signed declaration
- if lease completion is less than 14 days from date of warning - T provide statutory declaration (signed before independent solicitor)
- Lease must contain reference to warning notice and declaration
If procedure for contracting out is not correctly followed?
Lease will enjoy security of tenure
What happens at end of non-protected tenancy
T has no right to occupy. If stay beyond = trespasser
What happens at end of protected tenancy
T can stay and hold over, or leave
T’s occupation can only be brought to an end by certain methods
How can landlord end protected tenancy
Forfeit lease - if possible
Serve hostile s25 notice
When must s25 notice be served
No less than 6 months and no more than 12 months before date of termination (date when tenancy will end)
What is a friendly s25 notice
Indicates LL willing to renew tenancy to start day after termination - proposes rent to be paid and principal terms
What is a mandatory ground re opposing renewal
If LL establishes this ground, court must grant possession to landlord
Examples of mandatory grounds to oppose renewal
LL intends to occupy (only do this if owned reversion for 5 years)
LL intends to demolish, reconstruct or carry out substantial works
LL has offered suitable accommodation
On what statutory grounds to oppose renewal of lease would LL have to pay compensation
Intention to occupy premises
Intention to demolish, reconstruct or carry out substantial works
What is a discretionary ground to oppose renewal of lease
Court can decide if the lease should be renewed/ terminated
Examples of discretionary grounds to oppose grant of lease
Breach of repairing obligation
Persistent delay in paying rent
Substantial breaches of tenant obligation
How can tenant end tenancy?
Vacate at end of premises
Serve s27 notice to leave premises
When must s27 notice to leave premises by served by tenant
No less than 3 months before termination date. Once served, cannot change mind and serve s26 to renew.
If tenant is holding over, must serve s27 notice and give 3 months notice
How can tenant request new tenancy
Serve s26 notice
Can hold over instead, but this provides more security
Requirements to serve s26 notice
Must have lease with contractual term of one year or more
Notice period to send s26 notice
No less than 6 months and no more than 12 months from PROPOSED COMMENCEMENT DATE (which must be after termination)
What can LL do on receipt of s26 notice
Agree new lease
Serve counter notice within 2 months (hostile s25 notice)
Deadline for applying to court to renew/terminate tenancy
After service of s25 notice - either party may apply at any time after service of notice, as long as it is before date of termination specified in notice
After service of s26 notice to renew- can only apply to court after 2 month period in which LL can serve counter notice. Deadline is day before proposed commencement date of lease
Possible court orders
New lease - can only grant new lease up to 15 years. Rent will be open market.
Termination - brings existing lease to an end and tenant has no right to renew
What can T do if not happy with terms of new lease granted by the court
Ask court to revoke within 14 days. No right to renew after this.
Period to appeal new lease/termination order by court
21 days
When will court order (new lease or termination) being existing tenancy to an end?
3 months and 21 days after date of order
Interim rent payable during hold over / negotiation period
Rent at amount it was when last renewed
Either party can apply to court to fix interim rent based on open market - can go up or down
If court fixes interim rent, when will this be payable from
Earliest date of termination - eg 6 months from s25 or s26 notice.
What is a competent landlord for these purposes?
Both s25 and s26 notice procedures must be conducted by tenant and competent landlord (who may not be immediate landlord)
Competant landlord is first in chain of landlords to own reversionary interest that will not come to an end in 14 months time
Date rules
A notice expires on same date as date on which it was served, eg a 6 month notice served on 1 Jan will expire on 1 July
A notice served on last day of month will end on last day of the appropriate month if it is shorter, eg 6 month notice served on 31 August will end on 28 Feb (or 29 if leap year) - corresponding date rule
