Obtaining Possession of a Commercial Property

Here at Kew Law LLP, we act for both landlords and tenants in relation to various landlord and tenant issues. One such issue is obtaining possession of a commercial property.

As with all tenancies, to bring it to an end, a set procedure must be followed. What procedure needs to be followed depends upon why possession is being sought and whether or not a tenant has the statutory right to a lease renewal, pursuant to the Landlord and Tenant Act 1954 (“the 1954 Act”).

How do I know if the lease security of tenure is pursuant to the 1954 Act?

The 1954 Act provides commercial tenants with security of tenure. This means that at the end of the fixed term of the lease, business tenants have the right to remain in occupation and the right to apply for a new lease. Such security of tenure can be excluded from the lease by way of agreement between the parties. A specific procedure should be followed before the lease is entered into, to ensure that all parties are clear that the tenancy is to be excluded under the Landlord and Tenant Act 1954 and that the proper paperwork ensuring its exclusion is entered into.

Is there a break clause?

Some leases will have a contractual term enabling tenants to terminate the lease during the fixed term earlier than the expiry of the fixed term provided. These are often very specific clauses with specific requirements, and here at Kew Law LLP, we will be happy to advise you on what needs to be done to ensure a valid break notice is served, or advise you on whether or not a break notice that you have received is indeed valid.

Tenancies which are protected under the Landlord and Tenant Act 1954

The most common way for a landlord to bring a business tenancy to an end is by the service of a Section 25 Notice. This notice must contain certain information, give a certain notice period, and must rely upon a particular ground. For example, the landlord with an intent to demolish or reconstruct the property or where there has been a breach of a repairing covenant.

The ground to be relied upon is of particular importance, as some grounds give discretion to the Judge, so, if the tenant seeks to challenge bringing the lease to an end, the Judge has no obligation to award possession.

Other grounds place a mandatory obligation on the Judge to award possession in situations where the ground has been fully evidenced, and the correct procedure has been followed.

It should also be noted that if certain grounds are relied upon and made out, this could result in compensation being payable to the tenants. It is, therefore, important that you seek specialist advice before deciding which route to pursue.

Tenancies that have been excluded from the Landlord and Tenant Act 1954?

Essentially, if the initial fixed term has ended the tenant could be considered a trespasser as they do not have the benefit to remain in the property as they do not have protection under the 1954 Act.

In this situation in the tenants refuse to leave, then the landlord would be entitled to seek a Court order requiring them to vacate.

Forfeiture – Has the tenant breached the terms of the tenancy agreement?

It is often the case that in business tenancies, there will be a forfeiture clause which will contain information as to when, contractually, a landlord would be entitled to bring a tenancy to an end because of a breach of a particular covenant by the tenant.

It often provides that when the rent is late, for a certain amount of time (perhaps 14 days), the landlord has the right to forfeit the lease, and this can often result in the landlord forfeiting the lease by exercising peaceful re-entry. Specific advice, again, should be sought on how to do this, to ensure that the rules are followed.

If the landlord is not able to exercise peaceful re-entry on the ground of rent arrears, or is relying upon any other breach of the lease, then a Section 146 Notice should be served. This notice requires the tenant to remedy a breach and should give them a certain period of time to do so. Failure to remedy the breach or successfully apply for relief from forfeiture will mean that landlord can seek a Court Order requiring them to vacate.

How can we help

If you are a tenant who wishes to challenge your commercial landlord seeking to obtain possession, Kew Law LLP are happy to assist in reviewing and advising on the options available and acting for you in the appropriate process.

If you are a landlord who wishes to obtain possession of your commercially tenanted property, then we can assist by reviewing the matter and advising on what we consider to be the quickest and most cost-effective way of obtaining possession, if that is your primary aim. We can, of course, thereafter, continue to act for you in following the selected process.

Here at Kew Law LLP, we would invite you to contact one of our landlord and tenant Solicitors who can offer a fixed-fee initial consultation to discuss your particular requirements in relation to a commercial tenancy.

Frequently Asked Questions

What is the Landlord and Tenant Act 1954 and how does it affect commercial leases?

The Landlord and Tenant Act 1954 gives most commercial tenants “security of tenure,” meaning they have the legal right to remain in the property after the lease ends and to request a new lease on similar terms. A landlord can only refuse renewal on specific statutory grounds, and strict procedures must be followed.

What is a Section 25 Notice and when is it used?

A Section 25 Notice is served by a landlord to either propose renewal terms for a protected business tenancy or to oppose renewal and bring the tenancy to an end. It must be correctly drafted, specify the intended termination date, and rely on one or more valid statutory grounds if renewal is opposed.

What steps can a landlord take if a tenant remains after the lease has expired?

A tenant who stays beyond the end of an excluded lease may be considered a trespasser. If they refuse to vacate, the landlord can apply to the court for a possession order to have them removed lawfully.

Can a landlord forfeit the lease for non-payment of rent?

Often, yes. Many commercial leases allow forfeiture if rent is overdue for a specified period. In some cases, landlords may carry out “peaceful re-entry” by changing the locks, though this must be done carefully and lawfully to avoid disputes.

When should I seek legal advice about ending a commercial tenancy?

Legal advice should be sought as early as possible, ideally before serving any notices, attempting re-entry, or responding to a tenant’s challenge. Early guidance helps ensure compliance with statutory rules and reduces the risk of disputes.

Examples

Example A

Protected Lease – landlord wants to redevelop the property

A landlord owns a shop unit let to a long-standing tenant under a lease protected by the Landlord and Tenant Act 1954. The landlord plans to demolish the building and redevelop the site into several modern retail units. To end the tenancy, the landlord serves a Section 25 Notice, relying on the redevelopment ground. The tenant can challenge the notice, but if the landlord evidences genuine redevelopment plans, the court must award possession. The tenant may also be entitled to compensation.

Example B

Break Clause – tenant wants to leave early

A tenant’s business is no longer performing well, and cash flow is tight. Their lease contains a break clause allowing termination at the end of year two, provided they give six months’ written notice and are up to date with rent. They serve notice but still owe two months’ rent. Because the break clause conditions were not satisfied, the break is invalid, and the tenant must continue with the lease unless new terms are negotiated.