Commercial Lease Solicitors

It is common for tenants who have not been represented by a solicitor to enter a lease without finding out the extent of their obligations under the lease. For example, without advice on the repairing obligations, a tenant may have to put the property in a better state of repair than it was at the commencement of the lease at the tenant’s cost. Dilapidation claims brought by the landlord can be very expensive at the end of the term so tenants must know their position before entering into a lease.

There are also considerations towards the extension of the lease. If a lease is not within the Landlord and Tenant Act 1954, the tenant may have to vacate the property at the end of the term and have no right to renew the lease. If a tenant is carrying out costly fit-out works, they may want the option to take a new lease at the end of the term. If this is the case, the tenant will need to consider or negotiate some protections against being asked to leave after the 5 year period.

Having your commercial lease agreement checked by a solicitor can prevent later disputes but should the unavoidable happen we can also help with commercial property dispute resolution.

A commercial lease is an agreement between a landlord and a tenant, that gives the tenant the right to use a property for a business purpose, over a specified period of time, for a defined sum of money.

The legally binding contract contains clauses and provisions defining the rights and obligations of the tenant and landlord.

These can sometimes be biased in favour of the landlord and therefore need to be carefully scrutinised by a specialist solicitor.

The key areas are the length of the lease, rent and other payments to be made by the tenant, service charge, repairs and decoration, alterations, use and dealing with the tenant’s interest in the lease.

Where a new lease is being granted, the contractual terms can usually be negotiated (even if the landlord states otherwise). Upon receipt of the draft lease from the landlord’s solicitors, as your legal advisors we will review its provisions, discuss them with you and put forward amendments for discussion/negotiation.

No, lease provisions are not heavily regulated in England and Wales. The RICS Code for Leasing Business Premises sets minimum standards for lease negotiations, such as agreeing written heads of terms, but it binds RICS-regulated surveyors rather than landlords and tenants, so many leases do not follow all of its recommendations.

The period of time for which a commercial lease is granted (called the “term”) will vary depending upon the nature of the letting and the requirements of the landlord and the tenant. They are rarely granted for more than 25 years. In recent years, the trend has been for considerably shorter leases and the average length is now around eight years.

A break clause is an option for either the landlord or the tenant (or both) to end the lease before the end of the term, usually on a specified date by giving notice. Break clauses are frequently included in commercial/business leases.

A break clause can significantly affect the investment value of a property. If exercised, the income from the property will stop until the property is re-let. For this reason, when valuing property, it is normal to assume that a tenant’s break will be exercised. As a result, tenants often need to pay a higher rent for the flexibility of a break clause.

Yes. Subject to satisfying certain criteria, business tenants have a statutory right under the Landlord and Tenant Act 1954 to extend the contractual term of their lease. At the end of the lease, the tenant can ask the landlord for a new lease.

The landlord has some limited grounds to resist the tenant’s request (the most common being that the landlord needs the property for its own occupation or wants to redevelop it). Even then compensation may be payable to the tenant.

However, it is possible for the parties to agree (prior to the grant of the lease) that the tenant will not have these renewal rights. A specified procedure involving the service of statutory notices and the swearing of a declaration needs to be followed to ‘exclude’ the lease from the 1954 Act. The right to renew a business lease is a valuable tenant right and you should think carefully before agreeing to the lease being excluded from the 1954 Act.

Yes. Leases over five years normally include provisions to review (change) the rent at specified intervals during the term. These lease provisions are called ‘rent review’ provisions. Rent reviews are commonly negotiated between the landlord and the tenant by referring to the rents achieved in the open market.

Commercial leases in England and Wales have traditionally provided for ‘upwards only’ reviews, where the new rent negotiated cannot fall below the rent the tenant was paying before the rent review, even if market rents have fallen.

The Code for Leasing Business Premises has encouraged alternative forms of rent review mechanisms and it is becoming more common for rents to be reviewed in line with specified indices such as the Retail Prices Index (RPI).

The answer depends upon when the lease was granted. For leases granted before 1996, the original tenant remains legally responsible for the rent and the other lease commitments for the duration of the term (even after it has sold its interest).

For leases granted after 1996, the position is different. The tenant ceases to be liable to the landlord for future breaches once it has sold (assigned) the lease. However, landlords can legally require the selling tenant to guarantee the new tenant’s lease obligations using a guarantee document known as an Authorised Guarantee Agreement or AGA. It is important, therefore, when selling leasehold property, that you are happy with ‘covenant’ strength of your buyer.

The law in this area is complex and still developing and it is important that you get legal advice regarding your on-going liabilities when selling (assigning) a lease.

In most cases, the tenant will be responsible for keeping the property in good repair. If you are taking a lease of property which is not in a good state of repair when the lease is granted, you may find that you are legally obliged to remedy that disrepair. It is for this reason that we always advise that you obtain a survey. If disrepair is found before the lease is granted, it is possible to limit your liability by reference to an agreed schedule of condition which records the condition of the property at the start of the lease.

Landlords also expect the property to be regularly re-decorated and they may require carpets to be renewed and plant and equipment to be replaced. It is important for you to understand the extent of your repairing and redecoration obligations at the outset. Depending upon the nature of the property and the length of the lease, it may be possible to negotiate more limited repair/decoration liabilities.

If the tenant does not comply with its repair/decorating obligations, the landlord can serve a ‘schedule of dilapidations’ on the tenant. This requires the tenant to put the property back into a satisfactory state of repair. If the tenant does not carry out the work, the landlord can pursue a legal claim against the tenant for breach of the lease.

Disagreements over dilapidations claims are frequent and the law is complex so expert advice is recommended.

In multi-occupied buildings with common areas, the landlord will normally repair and maintain the structure and common areas of the property (eg entrance halls, service yards, stairs etc). However, the landlord will expect to recover the full cost of such repair/maintenance from the tenant by way of a service charge. If the landlord provides services to the tenant (eg heating and lighting a reception area, providing a lift service etc) these costs will also be recovered from the tenant via a service charge.

Service charges can represent a significant cost for business tenants and it is important that the service charge provisions in the lease are carefully drafted and negotiated and to ensure that the tenants’ liabilities are appropriate for the property being leased.

When negotiating a new lease, it may be possible to limit your service charge exposure by negotiating a service charge cap.

Yes. Landlords will usually restrict how the property can be used. The lease will specify a ‘permitted use’, often by reference to a planning class (eg B1 offices). Sometimes the use will be very specific to ensure that there is proper mix of businesses within the landlord’s development.

It is important to ensure that the permitted use specified in the lease is clear and wide enough for your purposes.

The answer depends upon what the lease says and the nature of the works you want to carry out. Leases normally control the alterations that a tenant can carry out. Generally the shorter the lease the less the tenant will be able to do.

Various types of alterations are usually dealt with in the lease as follows:

• Structural alternations - the tenant will not normally be able to undertake these
• External alterations - the tenant will not normally be able to undertake these
• Non-structural internal alterations – the tenant will be permitted to carry these out subject to getting the landlord's consent (which it cannot unreasonably withhold or delay)
• Non-structural partitioning – the tenant should be able to erect and remove non-structural partitioning without the landlord's consent (but may need to notify the landlord of what has been done).

Landlord’s consent to alterations on a commercial lease property is usually given by a formal deed (known as a licence to alter) requiring the tenant to:

• comply with various building requirements when carrying out the works
• insure the works
• emove the works when the lease ends.

The document will need to be negotiated if you do not want to remove all or part of the works at the end of the term. It should also specify whether the works should be taken into account on rent review (this should not normally be the case where the tenant has paid for the works).

Every commercial lease matter is quoted as a fixed fee before you instruct us, so you know the full cost up front. The fee depends mainly on whether you act for the landlord or the tenant, the type and size of the premises, the length of the lease and how much of it needs negotiating. Your initial consultation is free and there is no obligation to go ahead. For a quote, please call 020 3773 5116 or email us at info@imperialsolicitors.com or through the contact form.