Claims for double rent or letting value should satisfy precise conditions
| Can a landlord claim more than the rent? |
| Question My client’s premises remain occupied by a former tenant. In what circumstances can a landlord claim more than the rent or letting value of a property where a tenant remains in occupation with no right to do so? Answer There are two possibilities: (i) where a tenant wilfully holds over after the landlord has demanded possession and given notice in writing, the landlord may be entitled to double value if certain conditions are satisfied and (ii) where a tenant has given a notice to quit but then remains in possession despite the notice, the landlord may be entitled to double rent if certain conditions are satisfied. |
EXPLANATION
Double value after landlord’s demand
Under section 1 of the Landlord and Tenant Act 1730, a landlord is entitled to double the yearly value of the premises if a tenant holds over after the landlord has demanded possession in writing and the following conditions are met:
? The claimant must be the landlord or the assignee of the immediate reversion (a new tenant whose lease is to commence on the expiration of the defendant’s tenancy cannot sue).
? The tenant must be a tenant for a term for life, lives or years. A tenancy from year to year is covered by the section, as is a tenancy for a fixed term of a year or more. It is not clear whether a fixed term for a term of less than a year is caught.
Such a term has been held to be a term of years certain for the purpose of the Landlord and Tenant Act 1954, but the 1730 Act must be construed strictly because it is a penal statute. A weekly tenancy is not sufficient.
? The tenant must hold over wilfully without a bona fide belief that it is justified in doing so. The 1730 Act will not apply if the tenant holds over under a bona fide mistake or under a fair claim that it has the right to do so. The tenant must know that it has no right to remain in possession. This is a question of fact. A tenant that thinks “I shall stay on, I think that I have the right to do so” would not be holding over wilfully even if it turns out to be wrong, whereas a tenant that thinks “I will stay on, although I have no right to do so”, will be holding over wilfully.
? A demand must be made and notice in writing must be given pursuant to the 1730 Act. The demand and notice do not need to be separate. The notice can be given before the expiry of the term requiring the tenant to give up possession on expiration of the term, or it can be given within a reasonable time after the expiry of the term. Demand should be given before, or as soon as possible after, the expiry of the term.
If these conditions are satisfied, the landlord is entitled to double the yearly value (not rent) from the expiry of the term or, if notice is given after the term date, from the date of the demand.
Value is “what an occupier would give, and the landlord would otherwise have received, for the use of the freehold and everything connected with it, during the time that possession is withheld”.
Double rent after tenant’s notice
Under section 18 of the Distress for Rent Act 1737, a landlord is entitled to double rent if a tenant gives a notice to quit but then remains in possession when the notice has expired and the following conditions are met:
? The claimant must be the landlord.
? The tenant must be a tenant that can determine its tenancy by a notice.
? The notice must be valid and the landlord must have treated the tenant as a trespasser. The notice need not be in writing, it need only be valid so that if a tenancy can be determined by an oral notice, this will be sufficient. If the landlord disputes the validity of the notice, it cannot claim double rent (see Ballard (
Further, if a landlord accepts rent in circumstances that show that it is not treating the former tenant as a trespasser, it may waive its right to double rent.
The tenancy can be any type of tenancy. The 1737 Act has been held to apply to oral tenancies as well as to Rent Act tenancies. Unlike a claim for double value, this statute applies to weekly tenants.
There is no requirement under this statute that the tenant holds over wilfully without a bona fide belief that it is justified in doing so, all that is required is that it serves a valid notice that determines its tenancy and makes it a trespasser, and that the landlord treats it as such.
Double rent may be levied, sued for and recovered at the same time and in the same manner as the passing rent might have been levied, sued for and recovered.
The sum recoverable is double the rent or sum that the tenant should otherwise have paid and is payable for the period during which the tenant remains in possession following the expiry of the notice.
The tenant can stop the claim for double rent from running by leaving at any time it does not need to serve a fresh notice to quit.
E-mail your questions to egq&a@enterprisechambers.com and EGQ&A@charlesrussell.co.uk
Robert Highmore is a partner and joint head of property litigation at Charles Russell LLP and Zia Bhaloo is a barrister at Enterprise Chambers