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Intention to occupy

Litigation Letter

Intention to occupy

Patel and another v Keles and another [2009] EWCA Civ 1187; TLR 8 December

The defendant landlords objected to the claimant tenants’ application to renew their business tenancy on the grounds that they intended to occupy the premises for the purposes of carrying on their own business under s30(1)(g) of the Landlord and Tenant Act 1954. The issue was whether, in the face of the landlord’s assertion of his intention to occupy, where the court found that he was likely to sell in due course, although no purchaser have been identified and the premises were not on the market, he had the requisite intention for the purposes of the Act. ‘Intention’ means a decision to do something. Therefore, for the purposes of successful opposition under s30(1)(g), the landlord’s intention had to be a fixed and settled one. Did this mean his intention to sell also had to be fixed and settled? The court could properly conclude that a landlord had not shown the requisite intention to occupy premises where it found that the sale was merely likely as opposed to intended. The intended occupation must not be fleeting or illusory, but that was a minimum requirement which might be an appropriate test to apply where the business was to be continued through successors in title. In other circumstances there must be some substance in the intended occupation for the purpose of carrying on the landlords business; thus the occupation must be more than short-term. If the landlord had a sufficient intention to sell within five years, he would be treated as not having the requisite intention to occupy. However, if the judge found that he was likely, indeed highly likely, to sell, that likelihood was a factor which the court had to take into account in deciding whether the landlord had discharged the burden of proving that he had a genuine intention to occupy premises for the relevant purposes at all. That was a multi-factorial question to be decided on all the relevant evidence. In the present case, the judge had been entitled to conclude that the landlord had not shown the requisite intention to occupy the premises.

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