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View Full Version : LTA 1954 Part II excluded; T occupies after expiry; re-entry?



mo999
09-09-2008, 13:01 PM
I am a LL of commercial premises. The Lease I granted was for 5 years which expired in March of this year. It was an excluded tenancy. The tenant has simply held over. He has had a very bad history of paying rent and I'm pretty much fed up with it now. His rent is due later this month and there is a re-enrty clause in the Lease, if the rent is not paid within 14 days of it being due. If it is not paid, then can I instruct bailiffs, or indeed myself go in and change the locks and take possession of the property.


Any advice would be most welcome.

jeffrey
09-09-2008, 13:25 PM
If Part II of LTA 1954 was indeed validly excluded, T CANNOT hold-over. He does not owe you rent- that ceased running on term expiry.

He is now a trespasser. Begin Possession proceedings at once. DO NOT demand or collect rent- if you do, you're inadvertently creating a new Business Tenancy WITHIN the Act's protection!

mo999
09-09-2008, 13:38 PM
Unfortunately, Rent has already been demanded and accepted since the expiry date. Does the new tenancy, albeit within the Act, continue on the same terms as the previous lease. I.e. do I still have protection of the 14 day rule for forfeiture.

Lawcruncher
09-09-2008, 13:54 PM
It is not the case that the tenancy continues under the Act, since the Act was disapplied. Rather a new tenancy has arisen. Its terms are the same as the old tenancy except to the extent that are inconsistent with a periodic tenancy. The provisions for foreiture continue to apply.

mo999
09-09-2008, 14:10 PM
Thank you. So if he is late with his payment again, Can I exercise the right to re-enter. I have neevr done this before and was wondering whether anyone had any experience in this area.

jeffrey
09-09-2008, 14:10 PM
The provisions for forfeiture continue to apply.
...but, unfortunately, the statutory exclusion doesn't. Oops; L is lumbered unless s.25 Notice is now served on T.

mo999
09-09-2008, 14:51 PM
I dont really mind the protection part but Im worried he is not payng the rent, at least not on time. So really I wish to catch him on the right of re-entry clause.

mo999
09-09-2008, 15:18 PM
I have been searching the Internet for Bailiffs just to get a head start. There seem to be som many. Is anyone able to recommend any bailiff who is able to effect peaceful re-entry.

Thanks.

Lawcruncher
09-09-2008, 23:36 PM
...but, unfortunately, the statutory exclusion doesn't. Oops; L is lumbered unless s.25 Notice is now served on T.

The fact that the tenancy is now protected does not exclude the right to forfeit.

jeffrey
10-09-2008, 10:08 AM
The fact that the tenancy is now protected does not exclude the right to forfeit.
True. However:
a. the new letting is oral only and not referrable to the expired Tenancy Agreement (so any forfeiture provisions in it are irrelevant); and
b. the inadvertent protection is nevertheless unfortunate.

Lawcruncher
10-09-2008, 12:20 PM
Even if the tenancy does not continue by virtue of the 1954 Act, the tenant is still "holding over". The terms of the written agreement will apply.

mo999
10-09-2008, 14:45 PM
Thank you all. I do now understand the issue regarding the protection but am still not sure about the right to forfeit if he does not pay rent. If he misses the next rent due and it is still not paid for 14 days then would I be able to effect peaceable re-entry. I have never done this before. A few words from someone with experience in this would be most appreciated.

Thanks to all.

davidjpowell
10-09-2008, 16:29 PM
I think that you may struggle.

Most leases allow re-entry after 14 or 21 days if rent is unpaid. My understanding is that this right is not implied by statute.

What Jeremy and co are saying, if I am right is that you know have a statutory lease, rather than a continuation of the former lease.

If that is the case you would not have the right to re-enter and take peaceable possession.

I hope that Jeremy or one of his learned colleagues will confirm that my interpretation is correct.

David

jeffrey
10-09-2008, 20:12 PM
Even if the tenancy does not continue by virtue of the 1954 Act, the tenant is still "holding over". The terms of the written agreement will apply.
"Holding-over" what? The fixed-term lease ended. T is now holding a NEW UNRELATED oral tenancy.

jeffrey
10-09-2008, 20:12 PM
I think that you may struggle.

Most leases allow re-entry after 14 or 21 days if rent is unpaid. My understanding is that this right is not implied by statute.

What Jeremy and co are saying, if I am right is that you know have a statutory lease, rather than a continuation of the former lease.

If that is the case you would not have the right to re-enter and take peaceable possession.

I hope that Jeremy or one of his learned colleagues will confirm that my interpretation is correct.

David
No-one called Jeremy seems likely to reply.

Lawcruncher
10-09-2008, 22:50 PM
If a fixed term tenancy ends and the tenant stays and it is a tenancy where statute does not intervene to extend it or create a new tenancy, the tenant is "holding over". Until the landlord demands or accepts rent there is strictly no tenancy, but a "tenancy at suffrance" (despite its name, not a tenancy). The tenant is not a trespasser until the landlord objects because he is in occupation by virtue of his lease. As soon as rent is accepted a periodic tenancy arises. The terms of the periodic tenancy are the same as the fixed term tenancy except to the extent that they are inconsitent with a periodic tenancy.

davidjpowell
11-09-2008, 06:36 AM
No-one called Jeremy seems likely to reply.

Doh! - Gave my head a slap! Sorry jeffrey!

David

jeffrey
11-09-2008, 09:33 AM
The terms of the periodic tenancy are the same as the fixed term tenancy except to the extent that they are inconsitent with a periodic tenancy.
Yes, in effect, but this does not bring-forward (from the fixed term to the periodic tenancy) the Part II exclusion. The periodic tennancy IS within the Act's protection.

mo999
11-09-2008, 10:13 AM
Whilst I accept the periodic tenancy is outside the act, im concerned with the right to forfeir part. I dont want to exercise the right only to find he has a claim against me. I did read somewhere that a Tenant will have ahard job to claim any relief as long as his rent is outstanding.

jeffrey
11-09-2008, 10:17 AM
Whilst I accept the periodic tenancy is outside the Act
NO, IT'S NOT- as I have posted three times, the fixed term was outside the Act but the periodic tenancy is within the Act.

mo999
11-09-2008, 10:21 AM
sorry. my mistake. It is accepted it is inside the act. Another D'oh moment by me.

Lawcruncher
11-09-2008, 10:33 AM
Yes, in effect, but this does not bring-forward (from the fixed term to the periodic tenancy) the Part II exclusion.

Absolutely. It is, apart from anything else, inconsitent with a periodic tenancy!

leonard
11-09-2008, 16:53 PM
I have been searching the Internet for Bailiffs just to get a head start. There seem to be som many. Is anyone able to recommend any bailiff who is able to effect peaceful re-entry.

Thanks.


"We are using Dawkins www.dawkinspropertymall.com
They have been excellent. They specialise in commercial
property.
Our solicitor (now former solicitor) was useless. We explained the situation to Gerry at Dawkins and he gave us tough but sensible advice.
Dawkins used Common Law Forfeiture to peacefully enter and change the locks which put us in charge after months of shillyshallying from the tenant.
As I write this, Dawkins are supervising our tenant removing his goods from the warehouse. The tenant is paying the bailiff by the hour and suddenly his begging that he needed two weeks to clear his goods has changed to being able to get his stuff out in two days.
We've now found out that the tenant has other premises so his constantly bouncing cheques and pleas of being broke were just theatre.
Our next tenant is going to pay the rent monthly. This is a much better deal than paying quarterly. The landlord can quickly see if there's a problem rather than letting debts mount up.
Good luck and try Dawkins.
Leonard"

mo999
12-09-2008, 14:22 PM
Thank you very much for the advice.