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Is age really just a number?

View profile for Chris Hall
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Every now and again we are reminded of ancient laws that have never been repealed, some being fairly ridiculous and amusing! 

For instance, an 1872 law that has never been repealed made it an offence for a pub landlord to allow drunkenness in their establishment. Elsewhere, under a piece of legislation from 1839, it is still an offence to wilfully and wantonly disturb any inhabitant by pulling or ringing any door-bell or knocking at any door without lawful excuse. And since 1322, all beached whales and sturgeons must be offered to the Reigning Monarch.  Of course, these laws are a throwback to a different time and any attempt to enforce or rely upon them today would most probably be seen as a waste of time.

With this in mind, it is tempting to view any law created more than around 150 years ago with similar scepticism, although this shouldn’t be the case.  In fact, two pieces of legislation from the 18th century throw up examples of rather old laws that can be of genuine benefit to a landlord!

Take the below example for instance:

Assuming that a tenant has covenanted in the lease to hand over vacant possession of the property upon the termination of their tenancy, the tenant will be obliged to hand over a property that is vacant of people.  So, if upon termination of their tenancy, the tenant has not ensured that the property is vacant of people whether that is themselves, their licensees or any sub-tenant, they will be in breach of covenant (assuming, in the case of a sub-tenant, there is no direct agreement between the landlord and the sub-tenant). 

The remedy for such breach is the same as for any other breach of contract, the landlord will have a claim in damages against the tenant for losses resulting from that breach.  This might include the cost of gaining possession from the sub-tenant plus any losses that might arise from the landlords’ inability to deal with the property until vacant possession is achieved.

This is where two pieces of 18th century legislation may prove useful for a landlord… 

Landlord and Tenant Act 1730

Section 1 of this Act states that “if a tenant for a life or years, or any person who gets possession of the premises under or by collusion with such tenant, wilfully holds over on the premises after the determination of the term and after demand made and notice in writing given for delivery of possession by the reversioner or his lawfully authorised agent, the person so holding over is liable to pay to the reversioner at the rate of double the yearly value of the premises.”

In other words, if a landlord has demanded possession and the tenant has continued to occupy the property wilfully, that landlord can claim double the yearly value of the premises from them!

Sounds like good news for landlords, so what’s the problem? 

There can be a few issues with this provision. First, it only applies against a tenant or tenants for any life, lives or years, so a tenant with a fixed term of less than one year does not fall within the scope of the legislation and, second, they must be wilfully holding over.  In the event of a sub-tenancy, of course, it will not be the tenant holding over, it will be the sub-tenant so the tenant is no longer ‘on the hook’. 

As for the sub-tenant, their liability will depend on the nature of their tenancy.  They may, for example, be occupying lawfully under an assured shorthold tenancy.  In this scenario, there can be no claim against the sub-tenant and Section 1 of the Landlord and Tenant Act 1730 will not apply as the tenant is not holding over. Even if the sub-tenant is occupying the property unlawfully, they will not be holding over as they were never in lawful occupation, nor could they be caught by the legislation as they will not have been granted a tenancy for life or years.

So, in order to take advantage of this legislation, there must be either a situation in which:

  • the tenant is wilfully holding over after their tenancy has been terminated (note that ‘termination’ has different definitions for different types of tenancy) or;
  • a sub-tenant who is not occupying lawfully, but who was at some point given a term for life or for years, and is now wilfully holding over after the termination of the superior tenancy. 

If a landlord ever wanted to act on this, they must serve a demand or notice under the Landlord and Tenant Act 1730 in writing demanding the delivery up of possession before they can claim.

Distress for Rent Act 1737

Section 18 of the Distress for Rent Act 1737 states that a landlord is entitled to double rent where a tenant has served a notice to quit or has exercised a break option but does not then vacate.  Furthermore, this entitlement to double rent commences on the day that the demand or notice is given.

If any proof were needed that this law is still exercisable (or at least relevant) 280 years later, the leading Court of Appeal case on it is relatively recent having taken place in 1999. 

This case (Oliver Ashworth (Holdings) v Ballard (Kent)) not only established that a tenant will have a defence if they can prove that they genuinely believed they had the right to remain in the property, but it also established that the landlord’s right to double rent can only arise where the tenant holds over after their own notice to quit (making them a trespasser) and the landlord expressly treats the tenant as such.  For example, accepting rent at the contractual or ‘old’ amount after the notice to quit has expired will mean that the landlord is waiving their right to double rent (after all, one should not accept rent from a trespasser!)

The problems with sub-tenants

The Distress for Rent Act 1737 also suffers from the same issues as the Landlord and Tenant Act 1730 when it comes to sub-tenants holding over. 

It is unlikely that the sub-tenant will have served a notice to quit on the landlord and will presumably have a decent argument that they have a genuine belief that they have a right to remain in the property in most circumstances.

Generally, in most types of tenancy, a sub-tenancy will automatically terminate upon the end of the tenancy from which it arose. ‘The branch falls with the tree’ is the popular refrain.  However, there is a fairly substantial exception. 

Section 18(1) of the Housing Act 1988 provides that, if the sub-tenancy is an assured or assured shorthold tenancy, it will continue to exist even after the ‘superior’ tenancy has ended.  In such a case, the sub-tenant simply becomes the direct tenant of the landlord who would need to end the tenancy in the usual way.  It may however be that the tenant is still liable for their breach of covenant!

If this has got you thinking or asking questions about your own situation, our Landlord and Tenant team are on hand to assist with any and all matters. Give the team a call today on 023 8022 1344 or email contact@duttongregory.co.uk.