Apparently if it's a business then I've been told I have to give at least six months notice and I may not be able to get possession. I thought I just had to give two weeks notice and that was it. Is it right that the landlord and tenant act will apply because she says it's a business
I submitted a question on the fifth and asked for more info.Have now another update but no answer when wiil I hear please
What you have done (or rather have tried to do) is give her a licence rather than a lease. If she has a lease she is entitled to statutory protection under the 1954 act and you cannot just give her a couple of weeks notice to leave. However if she has a licence you can give her whatever notice there is in the licence which in this case is a couple of weeks. However it’s not what the agreement says it is which stipulates whether it is a licence or release but the actual structure of the document. So it can be a lease even though it says it is a licence and it can be a licence even if it says that it is a lease.
There is case law on this Street v Mountford and here is just one article on the subject
The court decided that the deciding feature as to whether it was a lease or a licence is whether “tenant” has exclusive possession. Hence, if the tenant shares the property with anyone else or you have the right to share the property with her, then it is a licence and you can give her the notice in licence agreement, to quit.
However she doesn’t share the property with you with anyone else but she has exclusive possession and is entitled to lock you out of the property without any problems without breaching the agreement, then she has a lease and you can only get her out uncertain circumstances which include redeveloping the property to the extent where it couldn’t be done without moving the tenant out if the landlord intends to occupy it and use it as his own.
Unfortunately, selling the property is not one of the grounds to get a tenant who has a lease, out of the property.
That is the legal situation. On a practical basis, this could be extremely expensive litigation if the occupier decides that they are going to take if you over this and you want to get them out. If you can get her to leave eventually or agree to leave by a particular date (assuming that she is actually looking for alternative premises) are well and good.
If she takes legal advice she could well be advised that she has a lease and exclusive possession and therefore the only way that you can get her out is to make it financially attractive for her to leave (pay her off).
If ever you want to avoid this situation and the future, always grant yourself the right to share the premises, by adding an additional clause into the licence. You don’t have to do actually share them you just have to have the right to do so. That gets round this problem and if you had the agreement drafted by a solicitor, and they didn’t include that clause, you may have a claim to make against the solicitor.
Finally I will tell you that this kind of litigation is not cheap, is extremely long-winded and it’s risky. It’s risky for both parties so if she wanted to take you to court, she’d better have deep pockets because, even if she eventually won she would have to fund it on the way unless she managed to get a solicitor to deal with this on a no win no fee basis which I think is extremely unlikely.
So, if it is a licence and she doesn’t argue otherwise, you can lock her out (provided you give her all her possessions back), when the notice expires. The problem is that she will probably then take legal advice and you could end up on a legal merry-go-round. What you want to avoid is her taking legal advice over that reason, you might want to offer her some kind of “incentive” to leave.
Can I clarify anything for you?