Q&As

A commercial lease prohibits assigning and sharing possession. It also prohibits permitting another person or company to 'use' the Property. What might constitute a third party 'using' the Property as opposed to sharing it if the use is ongoing? Would such use be both a remediable and ongoing breach?

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Produced in partnership with Desmond Kilcoyne
Published on LexisPSL on 10/06/2020

The following Property Disputes Q&A produced in partnership with Desmond Kilcoyne provides comprehensive and up to date legal information covering:

  • A commercial lease prohibits assigning and sharing possession. It also prohibits permitting another person or company to 'use' the Property. What might constitute a third party 'using' the Property as opposed to sharing it if the use is ongoing? Would such use be both a remediable and ongoing breach?

A commercial lease prohibits assigning and sharing possession. It also prohibits permitting another person or company to 'use' the Property. What might constitute a third party 'using' the Property as opposed to sharing it if the use is ongoing? Would such use be both a remediable and ongoing breach?

Prohibitions against assigning etc can cover a range of situations depending on the wording. They may:

  1. be limited to prohibiting ‘permitting’ or extend to ‘suffering’

  2. be a prohibition against ‘parting with possession’ (which includes assigning or subletting) or ‘sharing possession’ or

  3. be wide enough to prohibit the ‘occupation or use of the premises by another person’, alternatively ‘sharing occupation or use with another person’

Of these, a prohibition against permitting another person or company using the premises is about as wide as it gets. Here, the word ‘use’ may be contrasted with the other word which often appears in this scenario: ‘occupation’.

‘Occupation’ is a concept (as distinguished from ‘possession’; which connotes a legal right to exclude others) which is well known to property lawyers dealing with section 23 of the Landlord and Tenant Act 1954 (LTA 1954) being one of the conditions which must be fulfilled in order to determine whether the LTA 1954 applies to a tenancy. In that context (and possibly also for present purposes), various factors would be relevant to the question of whether

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