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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am subletting the ground floor of my office on a 5 year lease

Resolved Question:

I am subletting the ground floor of my office on a 5 year lease and the tenant wishes there to be a mutual break clause after 12 months, for me to exercise the break cause will it be necessary to exclude the lease from the landlord and tenant act and if so how?
Submitted: 9 months ago.
Category: UK Property Law
Expert:  Joshua replied 9 months ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Can you afford to wait at least 14 days to complete the lease or do you need to do so faster than that please?

Customer:

Needs to be faster as they plan to move in next Monday

Joshua :

Thanks. In that case you will have to have your tenant swear a statutory declaration. First you need to ensure the lease contains clauses along the lines of the following:

Joshua :
"The parties confirm that:

(a) the landlord served a notice on the tenant, as required by section 38A(3)(a) of the Landlord and Tenant Act 1954 (LTA 1954), applying to the tenancy created by this lease, before this lease was entered into [a copy of which notice is annexed to this lease]; and

(b) [the tenant] [[NAME OF DECLARANT] who was duly authorised by the tenant to do so] made a statutory declaration dated [DATED] in accordance with the requirements of section 38A(3)(b) of the LTA 1954 [a copy of which statutory declaration is annexed to this lease].

[(c) There is no agreement for lease to which this lease gives effect.]

The parties agree that the provisions of sections 24 to 28 of the LTA 1954 are excluded in relation to the tenancy created by this lease."
Joshua :

You will need to serve on the tenant a warning notice before the lease is signed in the following form:

Joshua :

FORM OF NOTICE THAT SECTIONS 24 TO 28 OF THE LANDLORD AND TENANT ACT 1954 ARE NOT TO APPLY TO A BUSINESS TENANCY


To:


______________________________________________________________________________________________


______________________________________________________________________________________________


______________________________________________________________________________________________


[Name and address of tenant]


From:


______________________________________________________________________________________________


______________________________________________________________________________________________


______________________________________________________________________________________________


[Name and address of landlord]












IMPORTANT NOTICE



You are being offered a lease without security of tenure. Do not commit yourself to the lease unless you have read this message carefully and have discussed it with a professional adviser.


Business tenants normally have security of tenure – the right to stay in their business premises when the lease ends.


If you commit yourself to the lease you will be giving up these important legal rights.


• You will have no right to stay in the premises when the lease ends.


• Unless the landlord chooses to offer you another lease, you will need to leave the premises.


• You will be unable to claim compensation for the loss of your business premises, unless the lease specifically gives you this right.


• If the landlord offers you another lease, you will have no right to ask the court to fix the rent.


It is therefore important to get professional advice – from a qualified surveyor, lawyer or accountant – before agreeing to give up these rights.


If you want to ensure that you can stay in the same business premises when the lease ends, you should consult your adviser about another form of lease that does not exclude the protection of the Landlord and Tenant Act 1954.



But if you do not receive at least 14 days notice, you will need to sign a “statutory” declaration. To do so, you will need to visit an independent solicitor (or someone else empowered to administer oaths).


Unless there is a special reason for committing yourself to the lease sooner, you may want to ask the landlord to let you have at least 14 days to consider whether you wish to give up your statutory rights. If you then decided to go ahead with the agreement to exclude the protection of the Landlord and Tenant Act 1954, you would only need to make a simple declaration, and so you would not need to make a separate visit to an independent solicitor.


Joshua :

Finally you will need to ensure the tenant provides you with a sworn statutory declaration in the following form:

Joshua :

I, ________________________________________________________________________________


(name of declarant) of


______________________________________________________________________________________________


(address) do solemnly and sincerely XXXXX XXXXX -



1. I/ ____________________________________________________________ (name of tenant)


propose(s) to enter into a tenancy of premises at


______________________________________________________________________________________________


(address of premises) for a term commencing on ______________________________________



2. I/The tenant propose(s) to enter into an agreement with


__________________________________________________________(name of landlord) that the provisions of sections 24 to 28 of the Landlord and Tenant Act 1954 (security of tenure) shall be excluded in relation to the tenancy.



3. The landlord has served on me/the tenant a notice in the form, or substantially in the form, set out in Schedule 1 to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003. The form of notice set out in that Schedule is reproduced below.



4. I have/The tenant has read the notice referred to in paragraph 3 above and accept(s) the consequences of entering into the agreement referred to in paragraph 2 above.



5. (as appropriate) I am duly authorised by the tenant to make this declaration.


To:


______________________________________________________________________________________________


______________________________________________________________________________________________


[Name and address of tenant]


From:


______________________________________________________________________________________________


______________________________________________________________________________________________


[Name and address of landlord]













IMPORTANT NOTICE



You are being offered a lease without security of tenure. Do not commit yourself to the lease unless you have read this message carefully and have discussed it with a professional adviser.


Business tenants normally have security of tenure – the right to stay in their business premises when the lease ends.


If you commit yourself to the lease you will be giving up these important legal rights.


• You will have no right to stay in the premises when the lease ends.


• Unless the landlord chooses to offer you another lease, you will need to leave the premises.


• You will be unable to claim compensation for the loss of your business premises, unless the lease specifically gives you this right.


• If the landlord offers you another lease, you will have no right to ask the court to fix the rent.


It is therefore important to get professional advice – from a qualified surveyor, lawyer or accountant – before agreeing to give up these rights.


If you want to ensure that you can stay in the same business premises when the lease ends, you should consult your adviser about another form of lease that does not exclude the protection of the Landlord and Tenant Act 1954.



But if you do not receive at least 14 days notice, you will need to sign a “statutory” declaration. To do so, you will need to visit an independent solicitor (or someone else empowered to administer oaths).


Unless there is a special reason for committing yourself to the lease sooner, you may want to ask the landlord to let you have at least 14 days to consider whether you wish to give up your statutory rights. If you then decided to go ahead with the agreement to exclude the protection of the Landlord and Tenant Act 1954, you would only need to make a simple declaration, and so you would not need to make a separate visit to an independent solicitor.




AND I make this solemn declaration conscientiously believing the same to be true and by virtue of the Statutory Declarations Act 1835.


DECLARED at _______________ this _____________day of __________________ .


Before me


______________________________________________________________________________________________


(signature of person before whom declaration is made)


A commissioner for oaths or A solicitor empowered to administer oaths or (as appropriate)


Joshua :

It is deliberately no easy to exclude security of tenure and if you have any doubts about what is required you would do well to ensure a solicitor manages the process for you however the above are the essential steps involved.

Joshua :

Is there anything above I can clarify for you?

Customer:

If I decide to wait the fourteen days and delay them so it's simply the process of getting them to sign the form do I still need to put the wording in the lease;

Customer:

"The parties confirm that:

(a) the landlord served a notice on the tenant, as required by section 38A(3)(a) of the Landlord and Tenant Act 1954 (LTA 1954), applying to the tenancy created by this lease, before this lease was entered into [a copy of which notice is annexed to this lease]; and

(b) [the tenant] [[NAME OF DECLARANT] who was duly authorised by the tenant to do so] made a statutory declaration dated [DATED] in accordance with the requirements of section 38A(3)(b) of the LTA 1954 [a copy of which statutory declaration is annexed to this lease].

[(c) There is no agreement for lease to which this lease gives effect.]

The parties agree that the provisions of sections 24 to 28 of the LTA 1954 are excluded in relation to the tenancy created by this lease."




6:35 PM



You will need to serve on the tenant a warning notice before the lease is signed in the following form:



Customer:

and if so where about within the lease

Joshua :

No the wording and procedure is a little different if you decide to wait 14 days. You should not use the above if this is your decision. The steps in essence are the same - the only main difference being that the tenant doesn't have to go to swear an oath formally but most solicitors prefer a sworn oath anyway because it gives the landlord a better base to argue exclusion of tenure in the event of any dispute.

Joshua :

Given that you save little in terms of work by waiting 14 days and a statutory declaration is better anyway it is probably better to go with the above especially as you are keen to lease the premises.

Joshua :

Is there anything above I can clarify or assist you with any further?

Customer:

Ok so where should the wording in the lease be placed ?

Joshua :

Providing it is in there it is not overly important where it is placed but you would normally expect to see it in the initial section after the definitions which contains provisions along the lines of The Landlord has agreed to Lease the Premises to the Tenant for a term of ? years etc. It should go before the schedules in any event and you can just create a new clause number to follow on from previous clause numbers.

Customer:

Ok that's great - many thanks for your help

Joshua :

A pleasure.

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 5 other UK Property Law Specialists are ready to help you

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