Plaintiff landlord seeking possession of premises – Business tenancy expiring by effluxion of time – Tenant not in physical occupation of premises as damaged by fire – Whether tenant in occupation of premises upon expiration of leases within section 23(1) of the Landlord and Tenant Act 1954 – Plaintiff’s claim failed
The defendant was the tenant of premises at 20A Baker Street. He had entered into two business tenancy leases in respect of those premises for use of the basement, ground and first floors as a restaurant. Each lease granted a term of nine years, from March 25 1988 to March 24 1997, subject to the landlord’s redevelopment break clause on six months’ notice. On April 16 1995 the premises were seriously damaged by fire and rendered unusable. The premises had not been physically occupied or run as a restaurant since that date. The tenant eventually took a lease of 79 Baker Street from September 29 1996 and resumed business. The landlord alleged that the premises had not been occupied by the tenant for the purpose of business carried on by him within the meaning of section 23(1) of the Landlord and Tenant Act 1954 since a date prior to the expiry of the leases. Accordingly, Part II of the Act did not apply to the leases upon expiry, as there was no real intention to return. It was submitted that the tenant abandoned his right of occupation once he acquired new premises, and the landlord was entitled to possession of 20A Baker Street. The tenant submitted that, although it was physically impossible to occupy the premises between the date of the fire and March 24 1997, he occupied 20A Baker Street at all times within the meaning of section 23(1) of the Act. This was evidenced by his retention of the key, storage of equipment there and his genuine intention to return as soon as the premises were rendered fit for occupation. It was submitted that this intention had been expressed to the landlord’s agent.
Held The landlord’s claim failed.
The landlord had wrongly submitted that intention to reoccupy in section 23(1) was analogous with that of section 30(1)(f) of the Act; a genuine, firm and settled intention, not likely to be changed and which the tenant had a reasonable prospect of bringing about. A tenant did not have to go so far in circumstances where, as in the present case, events over which he had no control led him to absent himself from the premises. It was sufficient to establish that, at all times since the event that caused him to absent himself, he intended to return to reoccupy the premises once they had been reinstated. Although not strictly required, the intention to exert and claim his right of occupancy should have been communicated to the landlord or landlord’s agent. It was not necessary for a tenant to have to go on and establish that there was a reasonable prospect of bringing this about in that the premises would have been reinstated in the near or reasonable future. On the evidence, the tenant had continued to exert and claim his right of occupancy up to the contractual term date of his leases and beyond. He made it clear that he intended to maintain his right of occupancy and to resume physical occupation as soon as the landlord was able to reinstate.
Edwin Prince (instructed by Nicholson Graham & Jones) appeared for the plaintiff; Timothy Fancourt (instructed by Pritchard Englefield) appeared for the defendant.
Sarah Addenbrooke, barrrister
