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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8539
Experience:  I have been practising for 30 years.
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Basically my husband and I rented a shop in 2009 it was a 3

Customer Question

Basically my husband and I rented a shop in 2009 it was a 3 year lease excluded out of the lta but it kept rolling forward. The area the shop is located has been under a lot of redevelopment so at times the rent was late but we always sorted it out.
In May 2015 the landlord issued a notice to quit. At the time we were not in arrears at all. Early this year I started to negotiate with the landlord for a new lease. we requested more time to consider the terms of the new lease and the landlord refused and took the matter to court for order of possession. The court gave the order and last week enforcement bailiffs locked the shop. We have till Thursday to collect our goods.
I need advice on making an appeal against the order and an appeal against the legal costs awarded In favor of the landlord and I also want to find out how to stay the eviction. This is urgent , please advise on how I can appeal . Its totally wrong for there to be no arrears on rent for the landlord to kick us out and then require that we pay legal fees. We have worked hard to build the business and goodwill.
Please help as all solicitors contacted are to busy to advise.
Submitted: 5 months ago.
Category: Law
Expert:  F E Smith replied 5 months ago.

At the time that you were locked out of the building, were there arrears of rent and if so how much?

In the lease, does it mention anything about the landlord foreclosing on the lease if the rent is late for a short period, usually 14 days?

If you’re not sure, can you attach a copy of the lease?

On what basis do you want to appeal the warrant for possession and the cost?

Customer: replied 5 months ago.
No there were no arrears the landlord stopped collecting rent when he applied for the order of possession around feb 2016 - there were no arrears on that date .In his claim in h is order he claims about £2,953.92 mesne profits and £4225.60 his legal costs.
the lease ended in in 2012 and we carried on a quarterly basis .yes in the lease there is a forfeiture clause.
the order is unfair there is no statement of rent account contained in any of the paperwork submitted to the court. there were no arrears at the time and we were in occupation for over 7 years . The landlord was negotiating a new lease with us there is written evidence . We only asked for more time to consider the terms. We have tried to renegotiate with the Landlord since the bailiffs ,he now says actually he has sold the premises to developers . I feel his aim in dealing with this was not because of any issue with rent but because he was avoiding paying us compensation for taking back the premises.
Expert:  F E Smith replied 5 months ago.

I cannot answer you fully and accurately without seeing the lease. Therefore, going to have to make some assumptions.

Assuming that this is a properly drafted lease, the landlord doesn’t have to collect the rent. You are under a duty to volunteer it whether he demands it or not. That is of course assuming that the lease is a properly drafted lease.

As soon as you stop paying the rent, you fall into arrears. As soon as you are 14 days in arrears, the landlord can foreclose on the lease and lock you out without actually applying to court. That is the provision in the lease.

It may be that the lease is defective or inadequate or that provision is not in there in which case the landlord would need to apply to court for an eviction order. That might be why he applied for the order or he may not have been aware that he was able potentially to evict you without. However if there is a forfeiture clause in the lease, which you say there is, then he didn’t need to go to court.

Under the 1954 act you have a statutory right to a new lease under the same terms as the old lease albeit at the market rent. He can refuse to grant lease on certain conditions and in this case he would only have to pay you compensation for taking back the premises if he intended to redevelop it himself or occupied himself and he had firm and settled intention to do so. A sale of the premises is not one of those conditions.

The reason he is claiming mesne profits and not rent for this latter period is because if he was claiming rent, you can claim that you had a tenancy and were entitled to remain in the premises. Financially it’s the same but it’s a technical point. His legal costs are whatever they have cost for the solicitors who will have charged about £200 per hour plus any court costs. A fee of £4000 is probably about right.

I assume that you defended the landlord’s action and lost. You can only appeal if the landlord made an error of law or an error of fact and on these facts, he made neither. You admitted that you have paid rent albeit that was because the landlord did not collect it but as I have said already, that is not relevant. You didn’t pay rent and hence, at the time of the judgement you were in arrears and the landlord was entitled to possession.

I’m sorry, I wish I could give you a more favourable answer but it’s the non-payment of rent which has been the problem for you. If you had continued to pay rent regardless, the landlord would be unlikely to have got the order against you.

Can I clarify anything for you?

Please don’t forget to rate the service positive even though the answer is unfavourable. It’s an important part of the process by which experts paid.

Best wishes

FES.

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