7 minute read
Legal
Can a periodic business tenant Returning to Work in occupation of premises obtain in the midst of the a lease from their landlord? You are a commercial tenant running a business from COVID-19 Pandemic premises and you now want your landlord to grant a written lease for a fixed term. you
Aneil Balgobin Head of Employment
The current Pandemic feels like a You may have been paying rent monthly or quarterly for some lease, or sell Unfortunately, such dialogue does not always • indirectly, by requiring employees to perhaps in order to grow your business, you will not resolve the dispute which could be unsatisfactory to both parties and a new lease, the tenant will be able to obtain a new lease on rollercoaster, with multiple waves years, but your landlord has still be able to result in an agreed conclusion – in those serve on the landlord the uncertaintly of a court return to work but failing to account for case terms to be agreed or if not and fast changing circumstances – one minute people are being told to stay at home wherever possible, then encouraged to eat out to save the economy, before coming full circle and people being instructed to work from home if they can. It has been difficult to keep pace for individuals and businesses alike. An employer has a duty to provide its staff with a safe and secure workplace, this is embedded within Health and Safety regulations. Accordingly, the minimisation of the risk of contracting COVID-19 in the workplace is now at the forefront of this duty. We have no doubt that this is not a simple task and most employers have conducted workplace risk assessments and taken huge situations an Employer needs to weigh up whether it has taken all reasonable steps to ensure the safe return of staff to the workplace and balance those steps against the representations made by any dissenting staff. Employers should be mindful that there may be employees who have underlying health issues or other medical concerns – either affecting themselves directly or involving people living in the same household. These could be difficult conversations to have, especially when such issues may not have been a problem in the workplace previously, but now take on a different dimension due to the COVID-19 landscape and can be particularly relevant when it touches upon people’s commute into work. health conditions; • directly, by failing to consult with an employee who suffers from a health condition that places them at a higher risk; and/or • by failing to make reasonable adjustments for an employee with a disability – by way of example someone using public transport may feel it is safer to travel at less busy times of the day and therefore want flexibility over their working hours whenever they have to travel into the office. Likewise, if companies have car parking spaces they may have to make them available to a wider group of staff as driving in will generally be seen as a safer way to commute compared to using public transport. not given you a fixed term lease. What can you do to force the landlord’s hand? Rights under a periodic tenancy It is likely that you are a periodic tenant and if you have been in occupation of business premises paying rent for more than 12 months, you will have become a protected business tenant with the rights granted by the Landlord & Tenant Act 1954 Part 11. As such the landlord cannot simply terminate your lease by giving you one month’s notice. It would need to serve you with a statutory notice under the 1954 Act giving you not less than 6 nor more than 12 months’ notice and you will then have the right to a notice under section 26 of the 1954 Act requesting a new lease. The right to do this only applies to tenants whose tenancy was granted for a fixed term certain exceeding one year or for any term and thereafter from year to year. So what should the tenant do? Negotiate with your landlord A periodic protected tenant should be in a strong position to negotiate a new lease with the landlord who would be keen to regularise the position. Without a lease, the landlord cannot unilaterally increase the rent, or regulate the use of the premises or prevent the tenant from sharing occupation or assigning its could be avoided by agreeing upon lease terms. One way in which the landlord can regularise the position is to serve a written notice under section 25 of the 1954 Act terminating the tenancy and stating whether or not the landlord is willing to grant a new lease and if so on what terms including rent and length of lease. If the landlord opposes the grant of a new lease, then it may only refuse on certain grounds set out in the statute, most commonly refusal on the grounds of persistent rent arrears, being able to demonstrate an intention to occupy the premises for its own use or an intention to redevelop. The landlord must demonstrate agreed as determined by the court. Accordingly the landlord cannot simply impose any terms it wishes and the court will look at the implied terms of the periodic tenancy when considering what terms should be inserted in the new lease. The landlord is therefore likely to be agreeable to grant a lease to a periodic tenant especially since it cannot increase the rent without first terminating the lease under the Act, and the position will remain uncertain. Taking legal advice It is best to seek legal advice first before finalising terms in principle with your landlord to ensure that the terms of the new lease are not strides in protecting staff. However, we have also noted that there are employees who remain concerned about returning to work, especially those who can work from home, for a variety of reasons. Where possible, it is usually desirable for an Employer to open a dialogue with such an employee to attempt to understand any These are considerations that should form part of the workplace risk assessment. A blanket requirement for all employees to return to work without consideration of some individual needs could be risky for an employer as it may lend itself to a risk of inadvertently discriminating against employees with disabilities, as defined by the Equality We have no doubt that these are difficult considerations for any employer. Our Employment Law Team at Anthony Gold are well versed at navigating employment legislation and current regulations and guidance around Covid-19. Couple with our commercial approach, we will offer unique support that will seek to ensure that your apply to the court for a new lease on terms to be agreed or decided upon by the court. Can you require the landlord to grant a new lease? If the time has come that you need the certainty of a fixed term tenancy. It is unlikely that the landlord could easily sell its interest in the property while a protected periodic tenant contiuues in occupation for an indefinite period. With oral tenancy agreements if a dispute arises the court would need to hear evidence and try to the ability to do these things if necessary by producing plans and specifications and the necessary planning permissions. This can make it difficult for a landlord to regain possession. If the tenant is a protected business tenant and the landlord does not have grounds to oppose onerous and reflect the terms of your existing oral tenancy. Where there is a dispute with the landlord and the landlord is taking steps to terminate the tenancy without offering acceptable new lease terms, it will be important to seek legal advice as to your rights and how to protect your position. concerns they have and what steps can be If you need expert legal advice, Act 2010. Such discrimination could arise please contact Alan Zeffertt by business is protected and looked after email on aze@anthonygold.co.uk taken to deal with this situation. or ask for him or a member o in a number of ways:f our Commercial Property Team, efficiently and effectively. telephone 020 7940 4000.
Anthony Gold Solicitors specialise in many different areas of law Our solicitors are experts in their fields. We are negotiators and litigators, committed to doing whatever is best for our clients.
