Pinney Talfourd Solicitors
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Commercial Property

Our Commercial Property Department is recognised as one of the leading commercial property departments in the UK by The Legal 500, an independent and definitive guide to the best law firms in the UK. 

Our expert solicitors have a wealth of experience in all commercial property matters.  They work closely with our corporate, litigation and land development solicitors when necessary.  We provide a bespoke service to our clients and look to determine at the outset the end goals and objectives in every transaction.

Getting your commercial property arrangements right can be an essential part of your business success and form the foundations for growth and development. Commercial property law is a complicated area and taking the time to obtain the right advice at an early stage is vital.

We act for a large number of property developers throughout Essex. Many of our clients feel that our experience, expertise and professional knowledge has been instrumental in the growth and success of their property portfolios.   We routinely act for large multinationals, institutions, charities, developers, pension funds, SME's, banks, sole traders, investors and private individuals in their commercial property work.
 

WHAT LEGAL 500 UK 2016 SAYS...

Julien Pritchard heads the team at Pinney Talfourd LLP Solicitors, which ‘gets the job done efficiently, no matter how complicated’.

What Legal 500 UK 2015 says...

Pinney Talfourd LLP Solicitors is ‘a reliable and proactive outfit’ that acts for small private owner-managed businesses through to large plc companies. Julien Pritchard is ‘an asset to have on side’ .



Your key contact: Julien Pritchard



▼ Commercial Property - FAQs

We understand the huge importance to almost any customer-facing business of the premises from which it operates. Your business will probably have developed a recognised presence at its premises, which it will want to retain. Also the costs of relocating a business can be significant, both in management and staff time and in money.

We are very experienced at acting for tenants in connection with the renewal of business leases, and we will guide you through this complicated legal process.

Q. My business lease is coming to the end of its term. Do I have to move out of the property?

A. This depends on whether your lease falls within Part 2 of the Landlord and Tenant Act 1954, or has been excluded from the Act.

If your business lease falls within the Act, and the landlord has not given you a notice bringing the tenancy to an end, then it is automatically continued (even after the contractual term is over) until such time as either the landlord gives you a notice bringing the tenancy to an end or you give the landlord a notice asking for a new tenancy.

On the other hand, if your lease has been excluded from the Act, then you will have to arrange a new right to occupy with your landlord, or you will have to vacate the property.

It is very important, therefore, to establish at an early stage whether you will be able to rely on the 1954 Act.

Q. How much notice must the landlord give me?

A. If you are entitled to rely on the 1954 Act, then the landlord must give you at least 6 months' notice. The form of notice is important, and we recommend that you consult a solicitor to check whether the notice is valid. If the notice is valid, then it starts a process involving very strict time-limits, within which you as tenant will need to act if you want a new tenancy. It is therefore very important that you seek legal advice as soon as possible after you receive such a notice.

Q. If the landlord has served a notice ending my tenancy, do I have a right to renew my business lease?

A. If your tenancy falls within the 1954 Act, then you have the right to ask the Court for a new tenancy. The landlord's notice will state whether or not he intends to oppose your claim for a new tenancy and, where he does not intend to oppose it, the notice will set out the landlord's proposals for the new tenancy.

If your tenancy does not fall within the 1954 Act, then you have no right to renew the tenancy.

Q. I do not want to go to Court. Do I have to involve the Court?

A. Once a landlord serves a notice terminating a business tenancy, strict time-limits apply.

If you and the landlord have not validly agreed a new lease in time, then you will have to issue a Court Claim Form to claim a new tenancy. If you have neither agreed a new tenancy nor issued a Claim Form in time, then you will have lost your right to claim a new tenancy.

Once the claim has been issued, it will probably be stayed by the Court to give the parties time to continue their negotiations. Most leasehold renewal cases settle long before the case reaches trial.

Q. My landlord and I have reached a verbal agreement as to the terms of the new lease. Is that sufficient agreement?

A. An agreement for a new lease can only be made in writing. It must contain all the terms of the contract that have been agreed, and it must be signed by all the parties. We recommend that you seek legal advice to make sure that your agreement with the landlord is valid and binding.

Q. My landlord is proposing renewal of my lease at a rent considerably in excess of the market rent. There are also other terms that I do not like. Do I have to accept this or leave?

A. Not if your lease is within the Landlord and Tenant Act 1954. If it is within the Act, and you and your landlord cannot agree as to the rent or the other terms of the lease, then you can ask apply to the Court to determine those issues. The rent will be set by reference to the current market rent for the property. The other terms of the tenancy will be the same as those of your old tenancy unless there is a good reason to change them.

Q. The landlord's notice indicates that he will oppose the grant of a new tenancy. What can I do?

A. If you cannot persuade the landlord in time to change his mind and grant you a new tenancy, then you will have to issue Court proceedings claiming a new tenancy. The 1954 Act restricts the grounds upon which the landlord is entitled to oppose the grant of a new tenancy. If the landlord cannot make out one of those grounds then your claim will be successful.

Q. The Landlord has not served any notice on me at all. Although my lease continues automatically, I would prefer the certainty of a new lease for a fixed term.

A. If your tenancy falls within the 1954 Act, then you also have the right to serve a notice on his landlord, requesting a new tenancy. It is very important to think carefully before serving a notice claiming a new lease. Although a new lease might give you certainty, there might well be other reasons why it might not be in your interests to claim a new tenancy. We recommend that you take legal advice before serving any such notice.

Also, the form of the notice is very important, and we recommend that you obtain legal advice before you serve any such notice.

Q. I have been to Court, and the Court has determined the terms of the new lease. My problem is that I do not like those terms, and do not want to take the lease on those terms. Do I have to take that new lease?

A. No. You still have the right to elect not to take the tenancy but you must apply to the Court to revoke the order within 14 days of the order being made. You must be very careful before you do so. You will lose your right to a new tenancy. Also, unless the circumstances of your case are very unusual, you will be ordered to pay the landlord's costs of the entire proceedings. It is therefore very important that you seek legal advice very quickly if you are thinking of electing not to take the new lease ordered by the Court.

Q. My business tenant has failed to pay the rent - what can I do?

A. You may consider forfeiting the Lease. You might be able to do this if the Lease contains a term allowing you to re-enter the premises, and whether any associated pre-conditions have been met. You will not be able to forfeit the Lease if you have inadvertently waived your right to do so. You must tread carefully here as it is possible to waive your right to forfeit the Lease simply by demanding outstanding rent, or accepting rent, among other actions. Therefore, it is always best to seek legal advice before taking any action.

Forfeiture may be the best option for you if you want to redevelop the premises, or you are confident that you can re-let the premises quickly, and at an equivalent rent.

You should only proceed with forfeiture using a reputable certificated bailiff and after receiving legal advice. The reason for this is that you will become the bailee of all goods found on the premises and you have legal duties to account for those goods.

An alternative may be to levy "distress". This is where a certificated bailiff is instructed to enter the premises and seize a tenant's goods. The goods are held until the tenant pays the arrears, and if the tenant fails to discharge the debt they may be sold and the proceeds of sale applied towards the arrears. Levying distress can be particularly effective as it puts a great deal of pressure on certain tenants to pay, and is usually a quick process. However, it is not always appropriate, and for further advice please contact the Property Dispute Resolution Team at Pinney Talfourd LLP.

If your tenant has sub-let, it is sometimes possible to step into your tenant's shoes and collect rent directly from the sub-tenant. This can be done by serving notice under Section 6 of the Law of Distress Amendment Act 1908.

If the Lease was granted before 1996, there is also the possibility of pursuing the original tenant for the outstanding rent, even though they may have moved away from the premises long ago. With newer tenancies, it may be possible to pursue a former tenant, but only if they have signed an authorised guarantee agreement ("AGA"). If you wish to pursue any of these options you will need to serve the correct notice, and there are strict time limits to be observed. The Property Dispute Resolution Team at Pinney Talfourd is experienced in such matters and would be happy to advise you on this option.

In addition to the above, there are also the traditional debt recovery routes to be considered, including the commencement of a debt claim in the County Court or insolvency proceedings. These have advantages because they allow the Lease to continue and so liability for the rent to continue to accrue. Where there is an AGA in place signed personally this can be the best route to maximize your recovery from the premises especially in a time of recession.

Finally, it is important to be aware that just because there may be a rent deposit, this does not automatically mean that you can use it. It is always recommended that the Rent Deposit Deed is checked thoroughly before any action is taken to ensure that the proposed action is legal, and all necessary notices have been issued.

Q. My business tenant has gone into insolvency - what should I do next?

A. This will have implications on your ability to either forfeit the Lease, levy distress for rent or claim rent by alternative means. Much will depend on the type of insolvency, such as administration, administrative receivership, bankruptcy or liquidation. Therefore, it is important to seem further detailed legal advice.

Q. How can I evict my business tenant?

A. If there has been a breach of the terms of the Lease by the tenant, it is sometimes possible for the landlord to re-enter the premises and physically take back possession. This is call peaceable re-entry. However, great care must be taken before you embark on such action. Firstly, one must consider the possibility of committing a criminal offence under the Protection from Eviction Act. This is relevant where part of the business premises may be used for residential purposes. Secondly, consideration must also be given to the terms of the Lease, as re-entry as a means of forfeiting the Lease can only be used if the Lease allows. The Property Dispute Resolution Department at Pinney Talfourd LLP would be happy to advise you on your particular circumstances.

Often, the safest way of evicting your business tenant is to commence a claim in the County Court for possession. Care must be taken before proceedings are issued in the court, as often the appropriate Notice must be served on the tenant, together with a letter before action. The Property Dispute Resolution Department is experienced in advising and representing clients through what can be a complicated procedure.

Q. The Property is not in good repair, what can I do?

A. Most Leases require tenants to insure and keep the premises repaired. This is often not the case and the landlord can serve notice requiring repairs to the property. There are a number of different types of repairing covenants commonly used in Leases and it is critical that you get legal advice on the meaning of the covenant in your particular Lease before requesting a tenant to carry out works. You have the ability to carry the works out on behalf of the tenant and charge them via the service charge in certain circumstances, again it is critical that you obtain legal advice before proceeding.

Q. I am proposing to take a new Lease, do I need legal advice?

A. In every case, the answer is yes. Leases can be incredibly onerous on a tenant, liability for rent and repairs is fixed at the time the Lease is entered into for many years ahead and the cumulative liability over that period can be most extensive. Even where the rental is relatively low, the repairing liabilities can be very high, under no circumstances would we advise a client to enter into a Lease without taking proper legal advice first. Commonly, a prospective tenant will obtain details of a commercial letting from a commercial agent and will agree basic Heads of Terms. Heads of Terms are not legally binding but exist so that each party can show them to their respective solicitor so that Lease negotiation can proceed. Ideally you should consult your solicitor before signing Heads of Terms because even though they are not legally binding they are often treated as if they are.

Q. When is the best time to obtain Legal Advice about a Commercial Letting?

A. As soon as possible. We have seen cases where a tenant has taken a Lease without taking legal advice and the Lease terms have turned out to be onerous to the extent that the business has failed and the tenant has become insolvent as a result. These dreadful consequences can be avoided by taking proper legal advice before entering into an agreement.

Q. I have a rent review, what action should I take?

A. Most commercial leases have regular rent reviews, it is critical to obtain advice on the type of rent review clause in your Lease before entering into negotiations as to what the new rent should be. Again, there are many different types of rent review clause and before your surveyor considers the position, you should obtain legal advice as to the type of rent review clause which exists.

Experience

Our commercial property solicitors have extensive experience acting for large multinationals, institutions, charities, developers, pension funds, SME's, banks, sole traders, investors and private individuals.  Experience is critical in this complex and commercially critical area of law.

Expertise

Our Commercial Property Department is one of the leading departments in the UK, as recognised by The Legal 500 UK, an independent and definitive guide to the best law firms in the UK.  Our specialist solicitors have extensive knowledge and expertise in advising on commercial property, finance, planning, development, telecommunications and construction.