To constitute a tenancy, the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments (Street v Mountford at 294). Once the tenancy takes effect, there is necessarily a parting with possession. The landlord grants exclusive possession to the tenant. The landlord no longer has possession of the demised premises. Whether it be for a fixed term or a periodic tenancy, for as long as the tenancy continues, only the tenant has exclusive possession. The only way in which either party can bring this state of affairs to an end, is by the tenancy being brought to an end. This might happen by the exercise

A TOGC is a ‘transfer of a going concern’. In order for there to be a TOGC, there must be the sale of a business (ie the sale of assets bundled together). If the sale of a business is treated as a TOGC, it is treated as neither a supply of goods nor a supply of services and therefore outside the scope of value added tax (VAT). No VAT is then chargeable on the sale. In order to be a TOGC, the sale of

A tenancy at will must be determinable at the will of either landlord or tenant. The use of the expression 'tenant at will' in an agreement will not create a tenancy at will if the rest of the agreement contains terms which are inconsistent with such a tenancy. See Practice Note: How to enter into short-term lettings and licences of commercial premises. Halsburys Laws of England provides the following useful commentary on the determination of a tenancy at will: 'A tenancy at will is determinable by either party on his expressly or impliedly intimating to the other his wish that

Whether a tenant can acquire a prescriptive right Where an easement is claimed by prescription, it must be claimed in favour of the fee simple of the dominant tenement as against the fee simple of the servient tenement. Therefore, a tenant cannot acquire an easement by prescription against his landlord, but by the use of the land of a stranger he may gain a prescriptive right in fee for his landlord which he will be able to enjoy as a tenant. This is not the case for claims to light under the Prescription Act 1832—a tenant may acquire rights of light by prescription; see Practice Note: Establishing and maintaining rights of light. However, this area has been the subject of much academic discussion that the reason why there are few cases in England where a tenant has succeeded in claiming a prescriptive right is not due to any special

The EU introduced regulations in 2002 designed to improve the energy performance of buildings, and one of the requirements was the introduction of Energy Performance Certificates (EPC). The EU regulations were implemented in England and Wales by a series of statutory instruments. The key current regulations are the Energy Performance of Buildings (England and Wales) Regulations 2012 (SI 2012/3118) (the ‘EPC Regulations’) as amended. The EPC Regulations affect both residential and commercial property. Although there are various exemptions to the requirement to obtain an EPC, we assume that the property in question is not one which is exempted from falling within the EPC Regulations. There are three obligations imposed where there is a sale or letting (a sale includes the assignment of an existing lease). The obligations are: • To commission an EPC before marketing if there is no existing

There is no reason in principle why a tenant cannot assign a lease within its contractual term, after serving a request for a new tenancy under section 26 of the Landlord and Tenant Act 1954 (LTA 1954). The tenancy will continue up to the day before the date given in the notice for the start of the new lease (see LTA 1954, s 26(5)). However, it will be critically important that, on the contractual termination date, and thereafter, the tenant at the time is in occupation of the premises for business purposes. If they are not, the lease will end on the termination date (or if that

Statute imposes obligations in relation to certain health and safety issues. As examples: The ‘dutyholder’ under the Control of Asbestos Regulations 2012 (SI 2012/632) is every person who has an obligation in relation to the ‘maintenance or repair’ of non-domestic premises under the terms and conditions of a lease or management agreement, and can therefore be a landlord or a tenant. Single occupiers, under fully repairing and insuring leases, would usually be the dutyholder responsible for compliance with the regulations. Owners usually have few responsibilities in respect of these buildings. However, individual leases could state otherwise and there may be unusual maintenance arrangements in respect of the building. For example, the owner may retain maintenance of the external facade or rooftop. See Practice Note: Control of

Section 60 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) sets out a specific statutory regime for the recovery of costs where an extended lease is claimed. The effect of LRHUDA 1993, s 60(5) is such that the landlord’s costs arising out of the service of the claim notice are recoverable where it is not necessary to refer the terms of acquisition to the tribunal (ie if it is not necessary to invoke LRHUDA 1993, s 48(1). All the landlord’s

Background: acquiring easements by prescription Easements can be established other than by express deed and implied grant through a process known as prescription. Prescription is defined as ‘a title acquired by use or enjoyment had during the time and in the manner fixed by law’. In other words, prescription is the acquisition of a right through long use or enjoyment; the law presumes that the right was lawfully granted. One of the most common ways that an easement is established by prescription is under the Prescription Act 1832 (PA 1832). By virtue of PA 1832, s 2, an easement can be established by the dominant owner showing 20 years’ use without interruption of the servient land. There is, of course, the proviso that this 20-year use was not achieved by violence or in secret or is dependent upon the will of another

This Q&A refers to the protection of deposits paid under an assured shorthold tenancies set out in the Housing Act 2004 (HA 2004). By HA 2004, s 214(4), the County Court must order a landlord to pay to a tenant (or any relevant person, as defined) a sum of money between one and three times the amount of a tenancy deposit if certain conditions are met. Those are: • HA 2004, s 213(3) or (6) has not been complied with in relation to the tenancy deposit, or • the court is not satisfied that the deposit is being held in accordance with an authorised scheme The requirements of HA 2004,

An easement is a right over land that benefits some other land. The former is described as the 'servient' land, whereas the land with the benefit is the 'dominant' land. An easement may require the servient land to do something (such as to allow the free flow of water through sewerage channels) or not to do something (such as to interfere with a right to light). The right benefits the dominant land itself, rather than the person who from time to time has ownership or use of the dominant land. An easement can be express and granted by deed, or arise by implication or prescription (long use). An easement can therefore be contrasted with a licence, which will usually be granted to

CPR 6 deals with service of documents. Where there is a need to serve an unopposed lease renewal claim under the Landlord and Tenant Act 1954 (LTA 1954) outside the jurisdiction, there are several routes that may be available for doing so with or without the court’s permission. First, CPR 6.33(3) provides that: The claimant may serve the claim form on a defendant out of the UK where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under the 2005 Hague Convention, notwithstanding that— • (a) the person against whom the claim is made is not within the jurisdiction, or • (b) the facts giving rise to the claim