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A tenant has carried out alterations without the landlord’s consent and now seeks to obtain retrospective consent. The landlord will grant a retrospective licence on onerous terms such as an increase in rent and payment of a premium. Otherwise, the landlord insists on the improvements being removed, despite the fact the improvements improve the letting value of the premises and they have suffered no loss. Can a landlord be held to be unreasonably withholding retrospective consent for alterations?
Q&As
The answer on the contractual provisions in the tenancy agreement. Here it appears that consent needs to be obtained prior to the tenant carrying out the works. If this is the case, there is no ability for the tenant to force a landlord to provide retrospective consent to alterations, unless the landlord wishes to agree to the same. In the event that the landlord is wishing to provide retrospective consent to alterations, it will specify the terms upon which it wishes to do so. In the event that the landlord imposes onerous terms, it will be
A tenant has carried out improvement work without giving notice to the landlord (or as required under the lease obtaining landlord’s consent). Can it rely on the Landlord and Tenant Act 1927 (LTA 1927) for approval of the works, but acknowledging no compensation will be payable as notice was not given? Or does LTA 1927 deal with compensation only and not retrospective approval?
Q&As
It is frequently the case that commercial leases will prohibit the tenant from making alterations or improvements to the demised premises without the consent of the landlord. Further, it is ordinarily the case that tenants are obliged to return the premises at the end of the term in the same state as they took them. Therefore, where consent to alterations is granted, reinstatement will usually be a pre-condition. The Landlord and Tenant Act 1927 (LTA 1927) contains various provisions relating to improvements. LTA 1927, ss 1–3 give the right to a tenant who has made improvements to compensation at the end of
A tenant has carried out unauthorised alterations and the landlord and tenant have reached an agreement to enter into a retrospective licence for alterations. One of the terms of the agreement is that the demised premises will increase in size. Is it the case that this will require the current lease to be surrendered and a new lease granted to reflect the increased demise? Will a retrospective licence for alterations be required following completion of the new lease when the alterations have already been completed?
Q&As
If the landlord and tenant agree to vary the existing lease (which seems to be what is proposed in the licence to alter) by increasing the demise then it will be deemed to be a surrender and regrant of the lease automatically. There are a number of consequences of this as described in our Practice Note: Lease variations—surrender and re-grant issues. The parties could separately agree to have an actual deed of surrender
A tenant has carried out unauthorised alterations in breach of the terms of a lease and without the knowledge of the landlord. Is there a time limit for the landlord to take enforcement action and when does this period start running?
Q&As
This Q&A raises the issue of the remedies which a landlord may pursue when a tenant breaches the covenants of a lease and the time limits within which it must be done. In this Q&A it is assumed that the lease is of commercial premises. This is because when the lease is of residential premises further hurdles must be met by the landlord before the right to forfeit the lease can be exercised. This point is returned to below. Most long leases of premises contain a covenant not to make alterations to the demised premises. This is understandable. A landlord might wish to ensure the structural integrity of other parts of the building which it owns or holds under a lease with liabilities to a superior landlord. The landlord might want to prevent a tenant making changes which although
A tenant has carried out works extending the kitchen of the demised premises into the demised garden area. However, this involved knocking through a wall that was retained by the landlord. If the landlord grants retrospective consent by a deed of variation, would the variation amount to a deemed surrender and regrant (eg by way of an extension to the demise)?
Q&As
It is open to the parties to vary the terms of a lease by entering into a deed of variation. It is common for such variations to take place to update the terms of a lease. An unwitting trap, however, arises where parties purport by a deed of variation to increase the extent of the demise or the term. By operation of law, certain variations to the terms of a lease by way of a deed of variation will amount to a surrender and regrant of the lease, even if this is not what the parties in fact intended. The
A tenant has entered into a company voluntary arrangement (CVA) and is consequently paying 50% of the contractual rent under the CVA. At the same time they are negotiating a new commercial lease regulated by the Landlord and Tenant Act 1954. Will an application made to the court adversely affect the amount of rent the tenant is paying? Also the landlord is entitled to give nine months notice under the CVA to bring the lease to an end. Can they still do this after protective proceedings have been commenced by the tenant?
Q&As
Where a tenant company enters into a company voluntary arrangement (CVA), there are a number of restrictions upon the ability of the landlord to obtain possession. This includes the prohibition of forfeiture by peaceable re-entry, save with the consent of the administrator or permission of the court. Permission is also required to forfeit by proceedings (section 130(2) of the Insolvency Act 1986). See Practice Note: Property law aspects of Company Voluntary Arrangements (CVAs) for further information. A CVA does not result from a court
A tenant has exercised a break option and the break conditions are vacant possession and payment of rent and other sums due under the lease. The lease provides that the tenant will keep the premises in good and substantial repair. There are dilapidation works that need to be carried out and the tenant has requested that it can stay on at the property after the break date to complete the dilapidation works. This is not an acceptable option to the landlord. What action can the landlord take?
Q&As
The tenant is required to provide vacant possession on the break date and have paid rent and all sums due. Break conditions are construed strictly and so if the tenant fails to provide vacant possession on the break date (remaining to carry out the dilapidation works) then the landlord is likely to be able to
A tenant has filed a defence and counterclaim to a part 55 possession claim based on a section 8 notice. When does the reply to the defence and counterclaim need to be filed by—within 14 days or when the allocation questionnaire needs to be served? Can the tenant’s solicitor agree an extension? Does the answer differ where the case currently sits in fast track but due to the rental amount is likely to be allocated to multi-track?
Q&As
For the purposes of the Civil Procedure Rules, an additional claim is treated as if it were a claim: CPR 20.3. A counterclaim is an additional claim within the meaning of CPR 20.2(2)(a). The period for filing a defence to counterclaim is therefore usually 14 days after service of the counterclaim: CPR 15.4(1)(a). This period cannot be extended by filing an acknowledgment of service: CPR 20.4(3). A reply to a defence is optional. The usual rule is that, if a reply is filed, it must be filed with
A tenant has issued lease renewal proceedings for two separate protected leases in one set of proceedings (using Form N208) and paid only a single court fee in respect of them. Can the landlord argue that the claim is irregular (and one of the applications for renewal was not made properly and is now time-barred) on the basis that a single claim (with a single Court fee) in respect of separate premises and separate leases was made?
Q&As
This Q&A assumes that the lease renewal proceedings are unopposed on the basis that Form N208 for claims under CPR 8 is being used. Unopposed lease renewal proceedings will be governed by CPR 56 and CPR PD 56, which provide that an unopposed Landlord and Tenant Act 1954 (LTA 1954) application must be made under CPR Part 8, save that rules 8.5 and 8.6 do not apply (CPR 56.3, CPR PD 56.2, para 2.1 and CPR 8). Under Part 7 (which must be used for opposed lease renewal proceedings CPR 56.3, CPR PD 56.2,
A tenant has made a court claim for a new tenancy pursuant to section 24 of the Landlord and Tenant Act 1954 following the service of a section 26 notice. The lease contains a rolling six-month break clause which either landlord or tenant can exercise. Can the landlord serve a break notice on the tenant and what would its effect be having regard to the tenant’s ongoing claim for a new lease?
Q&As
If the landlord serves a purported break notice on the tenant, it will be of no effect on the application for a new tenancy. Where a fixed term tenancy contains a rolling six-month break clause, the landlord can serve a break notice which will have the effect of terminating the contractual fixed term on the date specified in the notice. However, if the tenancy is one to which the Landlord and Tenant Act 1954 (LTA 1954) applies at that time, the tenancy will continue by virtue of LTA 1954, s 24. This is because the tenancy can only be terminated by a method initiated
A tenant has said it will vacate business premises protected by LTA 1954 at the expiry of the contractual term, however the landlord has already served a section 25 notice. The termination date is three months after the expiry of the contractual term. In a situation such as this does the section 25 notice have the effect of extending the tenant's liability for rent and tenant's covenants until the termination date specified in the section 25 notice, or just until the end of the contractual term?
Q&As
By section 23 of the Landlord and Tenant Act 1954 (LTA 1954), LTA 1954 Pt II applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes. By LTA 1954, s 24, a tenancy to which LTA 1954, Pt II applies shall not come to an end unless terminated in accordance with the provisions of Part II. Accordingly, if at the moment
A tenant has served a break notice with the break date later this year. The break is subject to pre-conditions. The parties have now agreed to enter into a new short term letting after the break date of the same premises. If the parties enter into the new short term reversionary lease (ie with a commencement date after the break date) would it act as a surrender and regrant as at present there is no certainty that the current lease will end? Will this be any different if the pre-conditions are waived? If the above does not work, is there an alternative way to structure the deal?
Q&As
A surrender by operation of law will arise where a landlord grants a new lease of premises to their existing tenant. This is discussed in detail in Commentary: • Surrender by operation of law: Hill and Redman's Law of Landlord and Tenant [4290] • Surrender by grant of new lease to tenant: Halsbury's Laws of England [525] It is clear that a surrender also takes place on the grant of a future