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SolicitorRM, Solicitor
Category: Property Law
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Experience:  Director and Principal Solicitor. UK
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I own a commercial property in the lake district. My tenant

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I own a commercial property in the lake district. My tenant has been in the property since june 2019 and has it as a take away cafe. He signed a 6 yr lease in June 2019 with a 3 yr break clause giving 3 months notice if he wanted to leave the lease. It's onlyy 8 months in and he now wants to continue in catering but elsewhere , keep the property under his lease but change it into a nail bar. I understand he would need to apply for planning so that the use changes from class A1 to sui genesis. He then wants to just manage the nail bar and rent out seats to nail technicians so not be there in person. I have a few reservations as to whether this business will work. But need him to be happy to pay the £800 per month rent. I will support his idea but need to know if he decided to leave the lease in the 3 year break...I would then be left with a property that has sui generals permission. It takes up to 8 weeks to change the use again through planning and I would then have a situation whereby I may be out of picket as a new tenant taking on the lease would require that time period. Do you know if I did secure a new tenant while my existing tenant was in the premises as a nail bar could I still apply for change of use back to A1 while he is in situ. If I knew this to be the case I would feel more secure....would it be feasible to change the lease details to give 5 months notice at the break clause to cover this time phase. Thank you
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: No as my tenants idea is in it's infancy
JA: Where is the property located?
Customer: Bowness on Windermere
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!

Hi thank you for your enquiry and patience.

1. you can apply to change use whilst the premises is still in a different class

2. You have to be careful not to sign a new lease with incoming tenant in case the planning permission does not come through in time or your current holds over

3. If you and the tenant mutually agree to the change in the notice period and perhaps to pay more in deposit to cover for the additional months then it can be done. you may not unilaterally change the terms of the agreed lease.

All the best. I would be grateful for your rating at your earliest convenience.

Customer: replied 16 days ago.
Thank you for getting back to me.
Please could you clarify a few things re the 3 points you made :

1. So while the existing tenant is in the property and still within their lease time I as landlord can apply for change of use? If I did have a new tenant in line could I make the application on their behalf even if they have not entered into a lease?

2. Are you saying it needs to be cut and dry in that the existing tenant must have ended the lease before the new one signs....because that would mean that a new tenant can't get started on the changes to the shop and interior until the new planning for their business comes through 8 weeks later (ie if they wanted it as a retail unit or back to a take away and so class A1) ....so the impact for me as landlord will mean a loss of rent.

3. So it is acceptable for me and my existing tenant to sit down together and agree on a few changes to the lease? Can I simply amend these changes and reprint the lease myself then get him, me and witnesses to sign to the documents again. Or does a solicitor have to re do the lease?

Bowness on Windermere is a seasonal place with businesses fully opening for 8 months March to November and reduced hrs in the 4 winter months. My tenants 3 yr break clause is due 1st June 2022 right in the middle of the summer season. With this in mind do you think it would be feasible for me to say to my tenant under these current circumstances that I want the break clause to be moved from 1st June 2022 to 1st Dec 2022.(ie 6 months down the line in the seasonal year) In doing this it could give me and prospective new tenants time to get planning and do shop adjustments in the winter months ready for a new season in 2023. Is it ok to extend the notice period from 3 months to 5 months? Is it ok to ask my tenant under these circumstances (which are proving to be a huge inconvenience to me) for 2 more months deposit if he goes ahead with this change?

Am I correct in understanding that the break clause is my tenants opportunity with notice to get out of the lease at this point instead of at the end of the 6 year lease period?

I look forward to hearing back from you
kind regards
Jo Nyquist

Hi, further to your questions:

1. You would have to time your application so that you are not applying to early that the current tenant ends up in the property where the use for it would have changed

2.You cannot have two leases overlapping.

3.If a solicitor did the original lease for you then you need to sit down with the tenant and once you agree you advise the solicitor to effect the changes

4. The break clause yes is the opportunity for your tenant to leave early before the end of the lease.

Your tenant may not agree to the extension of notice period but if they do then yes I would say ask for additional deposit.

Customer: replied 16 days ago.
Thank you for your reply

I will see if my tenant will agree to an extension of notice period of at least one month, hopefully 2 months and ask for one or 2 months more accordingly rent deposit so I'm covered.

I am not sure if you have answered the question I asked earlier and really need clarity of this as in my view if he wants to change use I want to delay the break clause date 6 months to the winter months.(ie from June to Dec) I hope you don't mind just looking over this specific situation again so I'm clear how to progress. thanks .....
"Do you think it would be feasible for me to say to my tenant under these current circumstances that I want the break clause to be moved from 1st June 2022 to 1st Dec 2022.(ie 6 months down the line in the seasonal year) In doing this it could give me and prospective new tenants time to get planning and do shop adjustments in the winter months ready for a new season in 2023 should he be backing out of the 6 year lease at this point in time."
If after talking with my tenant he agrees to the above I can get it written up in the amended lease.

I'm worried as I can't see this new business idea of his working and not sure he'll make enough money to pay my rent! It's crazy as my previous tenants spent thousands refitting the shop to make a takeaway and he's wanting to unravel all of that.

Thanks in advance for clearing up the above

Kind regards
JO

At the moment from your initial facts your client would have to give his notice in March 2022 to lapse in June 2022 which is your 3 years breakclause. You are wanting him therefore to give notice 3 months earlier in December 2021 to leave in June 2022. Because what he is asking you is a big ask (unless your lease already permits subletting and change of use) you can bargain with your client to ensure that you have the longer period notice in the winter months as you desire. It may help for you to show me the specific wording of your break clause because whay you are summarising here effectively means breakclause at 3.5 years on giving 6 months prior notice to terminate in December 2022.

SolicitorRM, Solicitor
Category: Property Law
Satisfied Customers: 3146
Experience: Director and Principal Solicitor. UK
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Customer: replied 16 days ago.
I have sent you, via this site, the lease document and hope it arrived ok ....if not please let me know and I'll copy and paste it in. It has always been agreed with my tenant that he has a 3 year break clause ie 1st June 2022. I thought it was clearly written into the lease but now I seem unable to find it apart from a title stating a review date in the lease particulars at the start of the document stating that the review date is three years from 1st June 2019... though it doesn't state the 3 months notice period! My tenant and I fully verbally agreed at the onset of this lease that it was a 3 month notice period should he wish to exit after 3 yrs. Unless I have missed it due to sometimes getting confused with solicitors speak I obviously need to address this and make sure it goes into the lease document. Or is it within the document somewhere that I haven't understood? If it has been excluded from the document please could you let me know how this should have been worded.

Aside from my initial enquiry with you I will ensure in the lease particulars I have a "Notice" header and put the time frame in there (4 or 5 months after discussion with tenant) PLUS a clause stating that the notice period prior to the break clause period and end of lease is however many months I decide!

I am definitely going to work towards bargaining with my tenant ..... yes I want the the breakclause to be at 3.5 years so terminating in Dec 2022 but the notice period need be only 4 possibly 5 months ( I still need to work out which is better)

I hope to hear back from you soon

thank you so much

Kind regards

Jo Nyquist
Customer: replied 15 days ago.
Hi I was just wondering if you'd had time to resond to last email re the lease I sent thanks Jo

Hi, I have had a terribly busy day and only got onto the platform a few moments ago. I will look at what you posted now and should respond

Customer: replied 15 days ago.
thank you

Hi, your agreement does not contain a break clause at all and you are right it does not contain the notice period that you may have discussed and agreed with your tenant. a written lease cannot be varied by verbal agreements. You really ought to get whoever (if solicitor) drafted the lease for you to carefully review it to ensure you are protected. The break clause will also need to cover such issues as what happens if you were to assign the lease - it has to specify if the clause if personal to you or attaches to the property so all new landlords are bound. The document you have does not allow either you or your tenant to determine the term of this lease before the 6 year term regrettably. It does provide for re-entry under section 140 if your tenant does not pay rent. Please see a local solicitor to review indepth your lease. All the best

Customer: replied 15 days ago.
Thank you for your help..I will look into all you suggest
kind regards
Jo Nyquist

you are welcome. All the best