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Contracting out

This page contains cases that deal with both the old and the new contracting out regimes:
  • Must be a term certain.
  • Simple and statutory declarations.
  • Changing the terms - introducing a break clause.
  • Change in the parties.

Term certain

London Borough of Newham v Thomas-Van Staden
[2008] EWCA Civ 1414

Summary

Prior to the reforms to Part II of the 1954 Act made in June 2004 a lease could only be contracted out of the security of tenure provisions of sections 24 to 28 by court order. Then (as now under the new regime) a tenancy could only be contracted out if the tenancy was to be granted "for a term of years certain". If, on a proper construction, the lease is not for a fixed term the tenant will be entitled to remain in occupation with the full protection of the 1954 Act. That is what happened in this case.

Facts

In this case, the lease was granted for a term "from and including [1 January 2003] to [28 September 2004] (Hereinafter called 'the term' which expression shall include any period of holding over or extension of it whether by statute of at common law or by agreement". A court order was obtained authorising the contracting out of the tenancy.

After the initial fixed period had passed the tenant remained in possession paying rent (albeit irregularly). The landlord subsequently wanted possession in order to carry out a redevelopment (starting in January 2009) and served a notice terminating the continuing tenancy (pursuant to a term in the lease). The tenant refused to leave.

Held

On a true construction of the lease, the term was not for "a term of years certain". It could not therefore be excluded from the provisions of ss 24 to 28; the court order was a nullity and the landlord was not entitled to possession.

Comment

An expensive mistake! There will still be many leases that have been contracted out under the old regime, or at least purportedly so. In this case the landlord wanted to redevelop the property. That is of course a ground for terminating a business tenancy under s30(1)(f) but if the landlord still wanted to go ahead it will have been necessary to serve a s25 notice and prove the ground etc.


Simple and statutory declarations
... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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