Commercial tenant refuses to leave

[Wight Knight]

Are you saying the lease contained a break clause allowing either party to give two months notice to end the lease? If so this should still be able to be enforced after the end of the fixed term, so your notice should still stand. I'm not sure how this stands with contracting out though - ie if you haven't contracted out correctly whether a break clause contrary to s25 LTA 1954 can still be enforced without a s25 notice. Hopefully someone can advise.

I think MrJohnnyB is exploring whether you have a granted a licence or a lease for the premises. You mentioned having to tidy up - does this mean you have always had free access to the rooms without needing the tenants consent?

[serj]

COMMERCIAL LEASE AGREEMENTTHIS LEASE (this "Lease") dated:
15th of February 2012
BETWEEN:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(the "Landlord")
OF THE FIRST PART
-xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(collectively and individually the "Tenant")
OF THE SECOND PART
The Landlord agrees to rent to the Tenant the commercial premises municipally
described as Therapy room 2 and 4 in xxxxxxxxxxxxxxxxxxxxx (the "Premises") and comprises a total Leasable Area of
approximately 350 square feet.
The Premises will be used for only the following permitted use (the "Permitted
Use"): Beauty Therapy.
Neither the Premises nor any part of the Premises will be used at any time
during the term of this Lease by Tenant for any purpose other than the
Permitted Use.
The Premises form only part of a Building. They do not include any part of the
main structure, foundations, roof or exterior of that Building but they do
include window frames and plate glass, doors and door frames, raised floors
and suspended ceilings and the voids above and below them, light fittings and
other landlord's fixtures and fittings.
No pets or animals are allowed to be kept in or about the Premises or in any
common areas in the building containing the Premises. Upon thirty (30) days
notice, the Landlord may revoke any consent previously given under this
clause.
The Landlord reserves the right in its reasonable discretion to alter, reconstruct,
expand, withdraw from or add to the Building from time to time. In the
exercise of those rights, the Landlord undertakes to use reasonable efforts to
minimise any interference with the visibility of the Premises and to use
reasonable efforts to ensure that direct entrance to and exit from the Premises
is maintained.
Subject to this Lease, the Tenant and its employees, customers and invitees will
have the non-exclusive right to use for their proper and intended purposes,
during business hours in common with all others entitled to the use of those
parts of the Common Areas and Facilities from time to time permitted by the


Landlord. The Common Areas and Facilities and the Building will at all times
be subject to the exclusive control and management of the Landlord. The
Landlord will operate and maintain the Common Areas and Facilities and the
Building in such manner as the Landlord determines from time to time.
The Tenant acknowledges that the Landlord or its agent will have the right to enter
the Premises at all reasonable times to show them to prospective purchasers,
encumbrancers, lessees or assignees, and may also during the ninety days
preceding the termination of the terms of this Lease, place upon the Premises
the usual type of notice to the effect that the Premises are for rent, which
notice the Tenant will permit to remain on them.
Term
The term of the Lease commences at 15th of February 2012 and ends on 14th of
February 2013.
Two months notice wanted to terminate or renew the lease by the tenant.
Upon 10 days notice, the Landlord may terminate the tenancy under this Lease if
the Tenant has defaulted in the payment of any portion of the Rent when due.
Upon 10 days notice, the-Landlord may terminate the tenancy under this Lease if
the Tenant fails to observe, perform and keep each and every of the covenants,
agreements, stipulations, obligations, conditions and other provisions of this
Lease to be observed, performed and kept by the Tenant and the Tenant
persists in such default beyond the said 10 days notice.
Notwithstanding that the term of this Lease commences on 15tb of February 2012
the Tenant is entitled to possession of the Premises at 12:00 noon on 15
th
of
February 2012.
Security of Tenure
The Landlord and the Tenant have agreed that sections 24 to 28 of the Landlord
and Tenant Act 1954 do not apply.
The Landlord has served on the Tenant a notice in the form, or substantially in the
form, set out in Schedule 1 to the Regulatory Reform (Business Tenancies)
(England and Wales) Order 2003 (lithe Order").
The requirements specified in Schedule 2 to the Order have been met in that the
Tenant has made the appropriate declaration in the form, or substantially in the
form, set out in Schedule 2 to the Order.

Use and Occupation
The Tenant will use and occupy the Premises only for the Permitted Use and for
no other purpose whatsoever. The Tenant will carry on business under the
name of xxxxxxxxxxxxxxxxxxxxx.
and will not change such name without the prior written consent of the Landlord,
such consent not to be unreasonably withheld. The Tenant will open the whole
of the Premises for business to the public fully fixtured, stocked and staffed on
the date of commencement of the term and throughout the term, will
Quiet Enjoyment
The Landlord covenants that on paying the Rent and performing the covenants
contained in this Lease, the Tenant will peacefully and quietly have, hold, and
enjoy the Premises for the agreed term.
Distress
If and whenever the Tenant is in default in payment of any money, whether hereby
expressly reserved or deemed as rent, or any part of the rent, the Landlord may,
without notice or any form of legal process, enter upon the Premises and seize,
remove and sell the Tenant's goods, chattels and equipment from the Premises
or seize, remove and sell any goods, chattels and equipment at any place to
which the Tenant or any other person may have removed them, in the same
manner as if they had remained and been distrained upon the Premises, all
notwithstanding any rule oflaw or equity to the contrary, and the Tenant
hereby waives and renounces the benefit of any present or future statute or law
limiting or eliminating the Landlord's right of distress.
Overholding
If the Tenant continues to occupy the Premises with the written consent of the
continuously occupy and utilize the entire Premises in the active conduct of its
business in a reputable manner on such days and during such hours of business
as may be determined from time to time by the Landlord.
The Tenant covenants that the Tenant will carry on and conduct its business from
time to time carried on upon the Premises in such manner as to comply with
any statute (already or in the future to be passed) or any government
department, local authority, other public or competent authority or court of
competent jurisdiction and of the insurers in relation to the use, occupation and
enjoyment of the Building (including in relation to health and safety
compliance with the proper practice recommended by all appropriate
authorities).
Advance Rent and Security Deposit
On execution of this Lease, The Tenant will pay the Landlord advance rent (the
"Advance Rent") to be held by the Landlord without interest and to be applied
on account of the last instalments of Base Rent as they fall due and to be held
to the extent not so applied as security for and which may be applied by the
Landlord to the performance of the covenants and obligations of the Tenant
under this Lease.
On execution of this Lease. The Tenant will pay the Landlord a security deposit
equal to the amount of One Months Rent (the "Security Deposit") to be held
by the Landlord without interest. The Landlord will return the Security Deposit
to the Tenant at the end of this tenancy, less such deductions as provided in
this Lease but no deduction will be made for damage due to reasonable wear
and tear.
The Tenant may not use the Security Deposit as payment for the Rent.
Within When Tenant decides to leave the property in good order and with proper
notice given as agreed by Landlord and The Tenant as speciffied in the
contract. after the termination of this tenancy, the Landlord will deliver or mail
the Security Deposit less any proper deductions or with further demand for
payment to: xxxxxxxxxxxxxxxx
or at such other place as the Tenant may advise.

Landlord after the expiration or other termination of the term, then, without
any further written agreement, the Tenant will be a month-to-month tenant at a
minimum monthly rental equal to one month Rent and subject always to all
of the other provisions of this Lease insofar as the same are applicable to a
month-to-month tenancy and a tenancy from year to year will not be created by
implication of law.
Additional Rights on Reentry
If the Landlord reenters the Premises or terminates this Lease, then:
notwithstanding any such termination or the term thereby becoming
forfeited and void, the provisions of this Lease relating to the
consequences of termination will survive;
the Landlord may use such reasonable force as it may deem necessary for
the purpose of gaining admittance to and retaking possession of the
Premises and the Tenant hereby releases the Landlord from all actions,
proceedings, claims and demands whatsoever for and in respect of any
such forcible entry or any loss or damage in connection therewith or
consequential thereupon;
the Landlord may expel and remove, forcibly, if necessary, the Tenant,
those claiming under the Tenant and their effects, as allowed by law,
without being taken or deemed to be guilty of any manner of trespass;
in the event that the Landlord has removed the property of the Tenant, the

[serj]

in the event that the Landlord has removed the property of the Tenant, the
Landlord may store such property in a public warehouse or at a place
selected by the Landlord, at the expense of the Tenant. If the Landlord
feels that it is not worth storing such property given its value and the
cost to store it, then the Landlord may dispose of such property in its
sole discretion and use such funds, if any, towards any indebtedness of
the Tenant to the Landlord. The Landlord will not be responsible to the
Tenant for the disposal of such property other than to provide any
balance of the proceeds to the Tenant after paying any storage costs and
any amounts owed by the Tenant to the Landlord;
the Landlord may relet the Premises or any part of the Premises for a term
or terms which may be less or greater than the balance of the term of
this Lease remaining and may grant reasonable concessions in
connection with such reletting including any alterations and
improvements to the Premises;
after reentry, the Landlord may procure the appointment of a receiver to
take possession and collect rents and profits of the business of the
Tenant, and, if necessary to collect the rents and profits the receiver
may carry on the business of the Tenant and take possession of the
personal property used in the business of the Tenant, including
inventory, trade fixtures, and furnishings, and use them in the business
without compensating the Tenant;
after reentry, the Landlord may terminate the Lease on giving 5 days
written notice of termination to the Tenant. Without this notice, reentry
of the Premises by the Landlord or its agents will not terminate this
Lease;
the Tenant will pay to the Landlord on demand:
all rent, Additional Rent and other amounts payable under this

Lease up to the time of reentry or termination, whichever is
later;
reasonable expenses as the Landlord incurs or has incurred in
connection with the reentering, terminating, reletting, collecting
sums due or payable by the Tenant, realizing upon assets
seized; including without limitation, brokerage, fees and
expenses and legal fees and disbursements and the expenses of
keeping the Premises in good order, repairing the same and
preparing them for reletting; and
as liquidated damages for the loss of rent and other income of the
Landlord expected to be derived from this Lease during the
period which would have constituted the unexpired portion of
the term had it not been terminated, at the option of the
Landlord, either:
an amount determined by reducing to present worth at an
assumed interest rate of twelve percent (12%) per
annum all Base Rent and estimated Additional Rent to
• become payable during the period which would have
constituted the unexpired portion of the term, such
determination to be made by the Landlord, who may
make reasonable estimates of when any such other
amounts would have become payable and may make
such other assumptions of the facts as may be
reasonable in the circumstances; or
an amount equal to the Base Rent and estimated Additional
Rent for a period of six (6) months.
Tenant Improvements
The Tenant will obtain written permission from the Landlord before doing any of
the following:
applying adhesive materials, or inserting nails or hooks in walls or ceilings,
painting, wallpapering, redecorating or in any way significantly altering
the appearance of the Premises;
removing or adding walls, or performing any structural alterations;
installing a waterbed( s);
changing the amount of heat or power normally used on the Premises as
'Well as installing additional electrical wiring or heating units;
placing or exposing or allowing to be placed or exposed anywhere inside
or outside the Premises any placard, notice or sign for advertising or
any other purpose; or
affixing to or erecting upon or near the Premises any radio or TV antenna
or tower.
Utilities and Other Costs
The Tenant is responsible for the direct payment of the following utilities if in
service:
Telephone, Internet, TV Licence.
The Landlord is responsible for the payment of all other utility bills in the building
like, Gas, Water, Electric, building insurance.


The Tenant will also perform the following maintenance in respect to the
Premises: Tenant will be responsible for maintaining the interior of the
property in good condition.
Care and Use of Premises
The Tenant will promptly notify the Landlord of any damage, or of any situation
that may significantly interfere with the normal use of the Premises.
The Tenant will not make (or allow to be made) any noise or nuisance which, in
the reasonable opinion of the Landlord, disturbs the comfort or convenience of
other tenants.
The Tenant will not engage in any illegal trade or activity on or about the
Premises.
The Landlord and Tenant will comply with standards of health, sanitation, fire,
housing and safety as required by law.
Surrender of Premises
At the expiration of the lease term, the Tenant will quit and surrender the Premises
in as good a state and condition as they were at the commencement of this
Insurance
The Tenant is hereby advised and understands that the personal property of the
Tenant is not insured by the Landlord for either damage or loss, and the
Landlord assumes no liability for any such loss. The Tenant is advised that, if
insurance coverage is desired by the Tenant, the Tenant should inquire of
Tenant's insurance agent regarding a Tenant's Policy of Insurance.
The Tenant is responsible for insuring the Premises for liability insurance for the
benefit of the Tenant and the Landlord.
Governing Law
This Agreement will be construed in accordance with and governed by the laws of
England and the Parties submit to the exclusive jurisdiction of the English
Courts.
Severability
If there is a conflict between any provision of this Lease and the applicable
legislation of England (the 'Act', the Act will prevail and such provisions of the
Lease will be amended or deleted as necessary in order to comply with the Act.
Further, any provisions that are required by the Act are incorporated into this
Lease.
Assignment and Subletting
The Tenant will not assign this Lease, or sublet or grant any concession or license
to use the Premises or any part of the Premises. An assignment, subletting,
concession, or license, whether by operation of law or otherwise, will be void
and will, at Landlord's option, terminate this Lease.
Additional Provisions
Maintenance
Tenant not allowed to consume or store food in treatment rooms or
any part of the basement.
Not allowed to use any sort of fire, smoke, candle, etc.
The tenant not allowed to use nails or pins on any part of the walls.


Lease, reasonable use and wear and damages by the elements excepted.
Hazardous Materials
The Tenant will not keep or have on the Premises any article or thing of a
dangerous, flammable, or explosive character that might unreasonably increase
the danger of fire on the Premises or that might be considered hazardous by
any responsible insurance company.
Rules and Regulations
The Tenant will obey all rules and regulations posted by the Landlord regarding
the use and care of the Building, and other common facilities:
Laundry/shower/bathroom/reception room that are provided for the use
of the Tenant in and around the Building on the Premises.
General Provisions
Any waiver by the Landlord of any failure by the Tenant to perform or observe the
provisions of this Lease will not operate as a waiver of the Landlord's rights
under this Lease in respect of any subsequent defaults, breaches or
nonperformance and-will not defeat or affect in any way the Landlord's rights
in respect of any subsequent default or breach.
This Lease will extend to and be binding upon and inure to the benefit of the
respective heirs, executors, administrators, successors and assigns, as the case
may be, of each party to this Lease. All covenants are to be construed as
conditions of this Lease.
All sums payable by the Tenant to the Landlord pursuant to any provision of this
Lease will be deemed to be Additional Rent and will be recovered by the
Landlord as rental arrears.
Where there is more than one Tenant executing this Lease, all Tenants are jointly
and severally liable for each other's acts, omissions and liabilities pursuant to
this Lease.
The provisions of Section 196 of the Law of Property Act 1925, as amended by
the Recorded Delivery Services Act 1962, will apply to the giving and service
of all notices and documents under or in connection with this Lease.
IN WITNESS WHEREOF the parties to this Agreement have duly affixed their
signatures
on 15th day of February 2012
(Witness)

(Landlord)

[serj]

Hi
Sent you contents of the contract so we find out if its a lease or license,
Thanks

[Wight Knight]

To my untrained eye, there is nothing that stops it being a lease - so it is a lease! You should probably proceed on that basis.

If you have successfully contracted out the lease, then the break clause is valid. If not, then you must also serve a s25 notice giving at least 6 months notice.

Looks like forfeiture is in there so if she has changed the rent level without consent you should be able to take possession and lock her out after the requisite time has passed. However she could apply to a court for relief from forfeiture.

You really need to get some professional advice as getting it wrong could cost.

[serj]

Thanks for advises, been very comforting to know I have choices.

[rentreviewspecialist]

Wight Knight, Thank you for posting a link to my information. I think the link is to an old site. The up-todate guides I offer free may be found here - http://www.michaellever.co.uk/theren.../mlguides.html

---

Re the op, it not enough to state in the lease that the tenancy is contracted out. A proper formal procedure must be complied with, including as another has said, serving notice before the lease is entered into.

Since the tenant is under the impression she's there for "life" because you didn't comply with the proper procedure, I'd suggest instructing your solicitor to serve s25 notice opposing renewal on three non-compensatory grounds in the LTA54, s30, namely:

(a) where under the current tenancy the tenant has any obligations as respects therepair and maintenance of the holding, that the tenant ought not to be granted anew tenancy in view of the state of repair of the holding, being a state resultingfrom the tenant’s failure to comply with the said obligations;
(b) that the tenant ought not to be granted a new tenancy in view of his persistentdelay in paying rent which has become due;
(c) that the tenant ought not to be granted a new tenancy in view of othersubstantial breaches by him of his obligations under the current tenancy, orfor any other reason connected with the tenant’s use or management of the holding;

After the s25 notice is served, your solicitor should be instructed to apply to the court to get the (non) renewal proceedings underway. There is no certainty the tenant won't want to defend the claim but the cost to the tenant in going to court might be enough to deter. Also, even if proceedings are underway, it is still possible for the tenant's defence to be struck out if she doesn't comply with the court's timetable.

Re the non-payment of rent, it doesn't have to be be for long. But it is vital that you write to her and make it clear in no uncertain terms that you require payment forthwith and if not forthcoming you will instruct bailiffs without further notice and then do so if she still doesn't pay. Otherwise the court could conclude that you have acquiesced to late payment.

if the lease you've granted would be considered a business tenancy and assuming the tenancy would qualify for renewal rights then the 2 month notice to quit by you is of no consequence.

With respect, by the sound of it, it doesn't come across that you know what you are doing so I really do think you should get advice from a solicitor experienced with business tenancy law. I appreciate that'll cost you but better that than be stuck with an awkward tenant for 'life'!

[rentreviewspecialist]

I've just skim-read the contents of the 'lease' (which I've done after posting yesterday my last comment).

Since your 'lease' says the tenant has non-exclusive possession, why grant a lease in the first place? Why not simply grant a licence in which case the problem you are encountering re getting possession would not apply.

Calling a document a lease or licence doesn't make it one. For occupancy, there are various tests to decide the difference between a tenancy and a licence. This 'lease' is a mix and mingle of the sort of of terms and conditions one would expect of one but not the other. Assuming you've used the same format for other lettings in the building, I rather suspect you've been lucky so far that other occupiers haven't been as awkward about their rights.

A lease is simply the document, that is all. So the question is not whether it is a lease or a licence, but whether a tenancy or a licence. The next question is why sort of tenancy, one that would qualify for renewal rights or not. Unless the correct procedure for not qualifying for renewal rights is followed then by default the tenant would qualify for renewal rights.

As I've said before I appreciate the preference for saving on costs but not if it increases the likelihood of problems. I have getting on for 46 years experience in commercial property and business tenancy advice and despite my vast knowledge of the subject I'd never dream of preparing a lease myself. Much better to get an experienced lawyer to draft it in terminology.

Drafting a lease or agreement may look easy to do, copy this copy that, but there is a language to business tenancy law that if one doesn't speak, let alone understand, then the chances of coming a-cropper are increased.