Q&As

What are the necessary elements for the occupation of a seating area (used by a tenant with a lease of separate commercial premises nearby) to be pursuant to a lease, rather than a licence? If the occupation is pursuant to a lease, would the tenant need to serve a separate request for a new tenancy of the seating area?

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Published on LexisPSL on 02/11/2016

The following Property Q&A provides comprehensive and up to date legal information covering:

  • What are the necessary elements for the occupation of a seating area (used by a tenant with a lease of separate commercial premises nearby) to be pursuant to a lease, rather than a licence? If the occupation is pursuant to a lease, would the tenant need to serve a separate request for a new tenancy of the seating area?
  • Case study
  • Licence or lease?

What are the necessary elements for the occupation of a seating area (used by a tenant with a lease of separate commercial premises nearby) to be pursuant to a lease, rather than a licence? If the occupation is pursuant to a lease, would the tenant need to serve a separate request for a new tenancy of the seating area?

Case study

A tenant of commercial premises pursuant to a lease also has a licence (in writing) for outdoor seating area which was entered into at the same time as the lease and was granted as ancillary to the use of the premises under the lease. The licence was varied (undocumented) to expand the seating area from removable tables and chairs which were moved every day to fixed table and chairs which the tenant is responsible for cleaning. The current agreement, following the undocumented variation of the original licence, has been in place for at least six months. The lease protected by the Landlord and Tenant Act 1954 (LTA 1954) and an LTA 1954, s 26 request has been served. The issue of whether a lease or a licence exists has arisen.

Licence or lease?

In all likelihood the original seating arrangement whereby the chairs were removed each day and the landlord retained overall control and responsibility would, in the absence of any other indication, amount to a

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