Commercial:

Repossession / opposing a new tenancy on the basis of own use – advice provided by Gaenor Thomas, Associate Solicitor, Commercial Property at law firm Hart Brown

Unless a lease has been contracted out of the security of tenure provisions of the Landlord and Tenant Act 1954, the Landlord can only oppose a new tenancy on the basis of one of the statutory grounds:

Ground (g) permits a landlord to recover possession if it intends to occupy the property for the purposes (or partly for the purposes) of a business to be carried on by the landlord.

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Interpretation of the word “intends” by the courts indicates that, at the date of the hearing, a landlord must prove:

(a) that it has a fixed and settled intention to occupy the property for the purposes of a business which it intends to carry on;

and

(b) that it has reasonable prospects of actually being able to do so.

Although the detail is not set out in the Act itself, case law indicates that the landlord must prove that it intends to occupy the property for a number of years after possession is recovered.

Any landlords hoping to recover their property for their own use should therefore ensure that they are able to prove both points (a) and (b) above.

If a landlord does not have the requisite planning permission for their proposed use, they will be unable to show that they do indeed have a reasonable prospect of occupying the property themselves.

Landlords looking to move back in should therefore consider, whether they will need planning permission for change of use or for any required works/alterations which they will need to carry out to adapt the property for their own business needs.

Although it has been held that it is not absolutely essential for landlords to have planning permission at the time of the hearing, they must have a realistic chance of obtaining permission, so that a reasonable landlord would act on that chance.

However, given that landlords must intend to occupy the property within a reasonable period of time following termination of the lease, if a landlord has not already obtained planning permission, they may find it difficult to prove point (b) above.

In the event that planning permission has been refused and a landlord wishes to consider an appeal, it would wise to obtain expert evidence to try and prove that such appeal is likely to be successful.

In short, landlords looking to move back in need to ensure that they actually have the permission to do so, otherwise a tenant’s plan to stay may trump the landlord’s lack of planning.

Gaenor Thomas, Associate Solicitor, Commercial Property at Hart Brown

Hart Brown, a leading law firm with offices throughout Surrey and in London, has been offering a full range of legal and financial investment services to businesses and individuals for the past 90 years. With 15 partners, more than 110 staff, six offices and a reputation for delivering high quality service, Hart Brown is committed to building long-term relationships with its clients.

Offices located in Cobham, Cranleigh, Godalming, Guildford, Wimbledon Village and Woking.   www.hartbrown.co.uk

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