Q&A: A closer look at rent demands
Where the lease is a commercial lease which includes a residential flat above does the landlord have to serve a formal rent demand (akin to in a purely residential lease) or can they just serve their normal rent demand before applying to court for possession or forfeiture for non-payment of rent?
In many cases, a landlord of a commercial lease which includes a residential flat would only need to serve their normal rent demand before applying to court for possession or forfeiture for non-payment of rent.
In order for a landlord to have the right to forfeit on the basis of non-payment of rent, this right must either be provided for as a express term of the lease; or in the absence of an express provision in the lease, the right has arisen due to a breach by the tenant of an express or implied condition of the lease. For more information on the landlord’s right to forfeit, see Practice Note: Forfeiture of a lease.
The landlord should check the terms of the lease to see whether the obligation to pay rent is dependent on the provision of a formal rent demand and ensure that this is complied with. In many commercial leases, the right to forfeit arises if rent is unpaid (whether demanded or not).
There are further requirements in respect of long residential leases pursuant to section 166 of the Commonhold and Leasehold Reform Act 2002 (CLRA 2002). A tenant under a long lease of a dwelling is not liable to make payment of rent under the lease unless the landlord has provided the tenant with a notice in the prescribed form. However, by CLRA 2002, s 166(8)(a), a tenancy to which Part II of the Landlord and Tenant Act 1954 (LTA 1954) applies cannot be a ‘long lease of a dwelling’.
The landlord should therefore check whether LTA 1954 applies. It will be necessary for the premises to be occupied for the purposes of business pursuant to LTA 1954, s 23(1). For further guidance, see Practice Note: LTA 1954 business lease renewal—termination, in particular section: Does LTA 1954 apply?
References: Cheryl Investments Ltd v Saldanha  1 All ER 5
In cases where the business purpose is significant, rather than merely incidental to the residential purpose, the presence of the flat will not be enough to displace LTA 1954 and therefore the requirement to serve a formal CLRA 2002, s 166 notice would not apply (see Cheryl Investments Ltd v Saldanha).
References: Pirabakaran v Patel  EWCA Civ 685
Notwithstanding the primarily commercial nature of this arrangement, a landlord would need to forfeit by way of court proceedings rather than peaceable re-entry. This is because of the statutory restrictions in respect of effecting the forfeiture of residential premises. Under section 6 of the Criminal Law Act 1977, it is a criminal offence to threaten or use force to gain entry when someone is physically at the premises and opposes re-entry. Further, under section 2 of the Protection from Eviction Act 1977 (PEA 1977), it is unlawful to peaceably re-enter a dwelling while someone is lawfully residing at the premises. The case of Pirabakaran v Patel confirmed that tenants of mixed use premises fall within the scope of PEA 1977, s 2. For more information regarding the tenant’s right to protection from eviction, see Practice Note: Protection from eviction and protection from harassment.
For more information generally, see Practice Note: Statutory limitations on the landlord’s right to forfeit a long residential lease.
This article was written by Samuel Lear at Charles Russell Speechlys and was first published on the Lexis Nexis Ask Forum. For more information, please contact Sam on +44 (0)1242 246374 or at email@example.com.
Strategic Planning for Modern Landed Estates
The second in our series of articles on succession planning for landed estates covering a wide variety of matters.
Thirsty work – Reporting on data centre water usage and environmental measures in the EU
When can you set off claims against different elements of a project
The Court’s decision raises important drafting considerations for construction contracts involving multiple elements of a project.
Drafting terms and conditions or negotiating a contract? Be wary of "unusual" and "exorbitant" exclusion clauses
When drafting a set of terms and conditions, companies must adhere to the requirements contained in the Unfair Contract Terms Act 1977
Stop, collaborate and listen: Top 10 Tips with Collaboration Agreements
Providing you with the top ten tips on collaboration agreements - what should you know?
Phase out of temporary restrictions on use of winding up petitions
Hannah takes a look at the recent UK Government announcement on statutory demands and the presentation of winding up petitions
Fiona Edmond and Mark Smith write for Property Week on data centres as an infrastructure asset class
The complexity of operational issues is something those new to the sector may not anticipate and interest is likely to increase.
Preparing your company for sale
We set out here some initial steps to consider in anticipation of a sale.
ESG investment and the challenges for trustees
What challenges does the ESG revolution present for trustees of private family trusts?
Save the date: 1 October 2021 - Notice periods for some residential tenancies to return to pre-pandemic position
The impact of COVID-19 on commercial and residential tenancies
What impact has COVID-19 had on commercial and residential tenancies? Read more here.
Charles Russell Speechlys advises discoverIE on its acquisition of Antenova
discoverIE is a leading international designer, manufacturer and supplier of customised electronics to industry.
From I, Robot to E-Witness: the rise of automated authority
Q&A: Separate blocks, common parts and enfranchisement
Miriam Seitler and Lauren Fraser answer queries relating to leaseholders seeking to acquire the freehold.
Let the party commence - Government launches consultation to make al fresco hospitality permanent
Coded messages for landlords and tenants
“What does the code of practice mean for landlords and tenants? Read more here”
The family court’s role in micro managing 'trivial' disputes
The recent decision has dealt with the family court’s role in micro managing “trivial” disputes in relation to children
Taxing horizons and fiscal black holes
A super-massive black hole at the centre of the nation’s finances means that tax reform and rates rises look increasingly likely.
Charles Russell Speechlys advises Acora on acquisition of Westgate IT
Westgate IT specialises in providing IT support to businesses in the South West.
Q&A: Wrestling with restrictive covenants
Camilla Lamont (barrister at Landmark Chambers) and Real Estate Disputes Partner Emma Humphreys answer a pair of covenant queries