What Happens If My Tenant Is Still In Occupation After Lease Expired?
Someone comes to talk to you or the phone rings and you forget to diarise that all important date. We have all been there. But where do you, as a Landlord, stand when that date was the end of the contractual term of the contracted out Lease for your property? Does the Tenant now have Security of Tenure? Is there any way to remove them?
The more time that passes between the expiry of a contracted out lease and action being taken, the more likely the continued occupation will be deemed to be either a Tenancy at Will or a Periodic Tenancy. But what does that mean for you and which one is best?
Tenancy At Will
A Tenancy at Will is created where there is a tenancy on terms that either party may terminate at any time. The important aspect is that a Tenancy at Will does not give the Tenant a right to a lease renewal under the Landlord and Tenant Act 1954 (“LTA 1954”).
There are various factors taken into account to decide whether a Tenancy at Will has been created. Has the Landlord’s conduct shown an intention to recover possession of the property? Has rent been accepted by the Landlord due to a mistake of fact, or by a mistake on behalf of the Landlord’s agent? Were rent demands auto-generated and issued?
Terminating A Tenancy At Will
A Tenancy at Will can be brought to an end without notice. Either party can terminate the tenancy by giving notice of their intention to the other, for example the Landlord may send a formal, written notice of intention to terminate or he could simply demand the return of the keys from the Tenant. There is no prescribed time period for termination. However, the Tenant is allowed a reasonable amount of time to enter the property after the termination to remove its goods.
If the Tenant does not vacate, possession proceedings can be followed or the Landlord can peaceably re-enter the property to change the locks.
A Periodic Tenancy is created where there is a Landlord and Tenant relationship and rent is demanded and paid by reference to a particular time period with no ongoing negotiations for a new lease. This can potentially give the Tenant Security of Tenure under the LTA 1954.
Ending A Periodic Tenancy
If the Tenant is occupying a commercial premises under a Periodic Tenancy which meets the criteria for a business tenancy under the LTA 1954 then the Tenant will have Security of Tenure. This means that the Tenant will have a legal right to remain in the property. The Landlord would need to serve a Section 25 Notice together with a Notice to Quit in order to terminate the Periodic Tenancy.
If the Tenant agrees to enter into a new lease, this will act as a surrender of the contractual term and the protected tenancy.
Ideally it would be best to avoid the need for either if at all possible but hope is not lost if that deadline is missed!.
There are lots of variables to take into account when deciding how the Tenant is currently occupying the Property. Our Commercial Property Team will be happy to speak to you regarding your options and whether there are any other paths available to you.