How To Evict A Commercial Tenant Without A Lease

How To Evict A Commercial Tenant Without A Lease

Ian McEwan, Property Disputes Solicitor

If you’re a landlord, and if you have a tenant in occupation of commercial premises without a lease, you need to be very careful before trying to evict them.

In many cases you’ll be able to get them out, but you shouldn’t try without taking legal advice because the options available to you where there isn’t a written agreement will be dictated entirely by the facts.

Rather than trying to evict them in the conventional sense of the word you might try to focus on convincing the tenant that it would be in their best interests to leave of their own accord.

***PLEASE NOTE***  Temporary legislation is in place during the COVID-19 pandemic which may affect the ability to use one or more of the options below and/or the notice periods that you are required to use.

By all means read on, but it probably makes sense to just give me a quick call on 020 7842 1452 , email me at: ian@propertydisputes.co.uk , or send me a message via my Free Online Enquiry Form.

An Alternative Approach

I’ve recently done just that for a client whose tenant had been in occupation of commercial premises for a long time without a written lease.

They’d been in occupation carrying on business for many years, paying the rent regularly on a periodic basis.

In this scenario a tenancy was very clearly implied by the conduct of the parties, even though nothing was set out in writing.

Where a tenancy such as this is implied the tenant will benefit from the protection of Part II of the Landlord and Tenant Act 1954.

I won’t go into the detail here but this essentially means that the tenant can only be removed in very specific circumstances prescribed by the Act.

 

Exercise Caution

In light of that, if my client had tried to evict the tenant without following the correct procedure it’s very likely that the tenant would have applied to court for an order to have them put back in.

My client would then have been liable for their costs and would have been back to square one having ruined any relationship that previously existed between them.

 

Using Leverage

Instead we got creative and focused on something else; some leverage that my client held over the tenant that it agreed to waive in exchange for the tenant giving up possession.

It was a commercial deal that suited both parties, saving them both a lot of time and money.

 

Fact Specific

You can see how this case was very fact specific.

This is always the case where there is no written tenancy.

The facts will always dictate which options are available to you as the landlord.

 

Using The 1954 Act

There are scenarios where a landlord can use the provisions of the Landlord and Tenant Act 1954 to remove a tenant.

The most common are where you intend to demolish or redevelop the premises, or when you intend to occupy them yourself.

There may also be scenarios where a tenant’s persistent delay in paying rent might assist.

 

Forfeiture

When we talk about evicting commercial tenants we’re often referring to “forfeiting” the lease, usually for non-payment of rent.

This might be by changing the locks (also known as peaceable re-entry) or by applying to court.

This is an excellent way to get the property back if you have a bad tenant.

 

Can You Forfeit When There Is No Lease?

However, if there is no written tenancy, how do you know if the right to forfeit has arisen, or if it even exists?

It’s generally accepted that the right to forfeit must be expressly reserved in a lease.

If it isn’t the landlord might arguably have an implied right to forfeit if the tenant breaches a clause of the lease that is considered to be a condition of it.

So, if for example, you want to evict a commercial tenant without a lease for non-payment of the rent you might be able to do so where the right to forfeit is not expressly reserved to you, but where payment of the rent is reserved as a condition.

The problem here is that without a written lease you can’t say with any certainty which rights have been reserved and which rights haven’t.

 

Is It Worth A Try?

I can see the merit in an argument that payment of the rent should be deemed a condition of an implied tenancy.

However, it is a very brave landlord who will try to forfeit where there isn’t a written agreement in place, as they could be sued for wrongful eviction by the tenant.

That said, there will be some landlords who are prepared to take a commercial view where they are comfortable with the associated risks involved

 

What About When There’s Not An Implied Tenancy?

There will be occasions where the “tenant” will not have the benefit of the protection referred to above, and there won’t be a lease at all.

This might be where they haven’t been in occupation for that long, where rental payments or a lack thereof don’t point to an implied tenancy, or where some other conduct between the parties is relevant.

If the facts are favourable to you it might be the case that the tenant has nothing more than a “tenancy at will” which you can terminate at any time (at your will funnily enough).

If that is the case and they don’t leave after you’ve terminated it you can then apply to court for a quick possession order to have them physically evicted.

Again, the facts will dictate whether this is an option for you.

 

How To Evict A Commercial Tenant Without A Lease – Conclusion

As you can see there are options available to get a commercial tenant out where there is no written lease in place, but the one that is best for you will depend upon the facts.

I deal with issues like these all the time so if you want to evict a commercial tenant without a lease get in touch.

I’d be happy to discuss it with you.

 

Get In Touch

You can call me now on 020 7842 1452 

Email me at ian@propertydisputes.co.uk 

Or complete a Free Online Enquiry

I’ll then get in touch as soon as I can for a chat about your legal rights and options.

There’s no cost or obligation.

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