PP 2002/155

Residence loses business link Q  Some nine years ago, we granted a 14-year, full-repairing lease of a shop with a flat above, the use of the flat being restricted to the operator of the shop. The tenant now wishes to use the entire premises as a residence. Although having no objection in principle, we are worried that the giving of consent might: (a) turn the tenant into an assured tenant under the Housing Act 1988; (b) burden us with the (non-excludable) repairing obligations imposed by section 11 of the Landlord and Tenant Act 1985. Are these serious concerns? A  Not if you do no more than suspend the operation of the user restriction. At present, the existence of an assured tenancy is excluded by the fact that the tenancy is one to which the business lease regime of the Landlord and Tenant Act 1954 applies: see Part I of the First Schedule to the 1988 Act. However, on case law authority, as applied by the Court of Appeal in Tomkins v Basildon District Council [2002] EWCA Civ 876; [2002] 27 EG 140 (CS), the mere removal of that exclusion (following the end of business occupation) will not bring statutory residential protection into play. The tenant would have to show a contractual variation of the terms of the tenancy: see Not a dog’s chance Estates Gazette 16 November 2002, where Sandi Murdoch confesses to being puzzled not only by the line of authority referred to, but also by the refusal of the Court of Appeal to find a variation on the facts of Tomkins. As regards repairs, the same case explains why, even if such a contractual variation were established, there would, without more, be no reason for supposing the creation of “a term of less than seven years” for the purpose of sections 11 and 13 of the 1985 Act.