Landlords can claim double value/rent from tenants who remain as trespassers under old statute.
Landlords can claim double value or double rent from tenants who remain in occupation as trespassers under old statute.
Two very old Acts of Parliament, of which both landlords and tenants are frequently unaware, enable a landlord of commercial premises to seek double value or double rent from his tenant. Although the scenarios in which you can use each Act differ slightly both are concerned with situations where the tenant remains in occupation as a trespasser beyond the end of the term of the lease.
It should be noted though that both Acts only apply in situations which are not covered by the security of tenure provisions of the Landlord and Tenant Act 1954. It is therefore only in circumstances were the tenant does not have security of tenure and stays in occupation as a trespasser that the rights to double value and double rent arise.
Section 1 of the Landlord and Tenant Act 1730 entitles the landlord to claim against his tenant double the yearly value of the premises during the period of holding over. This applies in a situation where the landlord has demanded possession in writing but the tenant wilfully remains in occupation as a trespasser.
The 1730 Act applies to any tenancies that runs from year to year as well as to fixed term tenancies. However, the Act does not apply to weekly tenancies and possibly tenancies from month to month or quarter to quarter.
In order to claim for double value the landlord will have had to have made a demand for possession and have given to his tenant notice in writing to deliver up possession. Arguably, a notice to quit will satisfy this requirement. The landlord may give the demand for possession and the notice either before the contractual term expires (requiring the tenant to deliver up possession on the expiration of the term), or within a reasonable time afterwards. It is best practice to make a demand before or as soon as possible after the expiry of the lease as the entitlement to double value begins from the date the demand is given and not from the date on which the tenancy expires.
The claim for double value will need to be assessed by the court. The value will be ascertained by what an occupier would have been willing to pay for the period of holding over. Double value does not necessarily mean double rent. Double value is the value that an occupier would give, and the landlord would otherwise have received, for the use of the freehold and everything connected with it, during the time that possession is withheld. It could, therefore, be more than an entitlement to double rent. It should be noted that, as the statute is penal in effect, its provisions will be construed strictly against the landlord.
The former tenant must be wilfully holding over, and not merely in occupation by mistake or because he has a fair and reasonable claim of title to the property. If the tenant can persuade the court that he did not remain in occupation wilfully, but that he genuinely believed that he had the right to remain there, he may have a successful defence to the claim.
The landlord may bring both an action for double value and an action for possession of the premises in the county court. The fact that the landlord has brought an action for possession does not prevent him for bringing a claim for double value. Equally, the landlord does not need to bring a claim for possession of the land in order to be able to recover double value. The actions are cumulative.
Another Act dating from the eighteenth century, the Distress for Rent Act 1737, allows Landlords to claim double rent in slightly different circumstances. The provisions of the 1730 Act must not be confused with a claim for double rent under section 18 of the Distress for Rent Act 1737. Section 18, entitles the landlord to double the passing rent where the tenant has given a notice that he will quit the premises at a specified time but subsequently continues to occupy the premises in contravention of the notice. The difference is here that the tenant has given notice that he intends to vacate whilst under the 1730 Act it is the Landlord who gives notice to the tenant to quit.
The failure of the tenant to vacate on the expiry of its notice to quit triggers the landlord’s entitlement to double rent under the 1737 Act. The double rent becomes chargeable for the period of “holding over” by the tenant; i.e. from the expiry of the notice until the day the tenant actually vacates.
For section 18 to apply, the landlord must treat the former tenant as a trespasser in unlawful occupation and must not do or say anything which would treat the lease as continuing. Furthermore, the tenant’s notice must be binding upon him to vacate the premises at the expiry of the notice and must be certain; it cannot (for example) be contingent upon the happening of some event in the future.
It is therefore essential that the landlord does not accept rent at the old level once the notice to quit has expired otherwise he will be held to have waived his right to claim double rent.
The object of the 1737 Act is to compensate the landlord for potential loss of rent when the tenant held over against the landlord’s insistence that the tenant should comply with his notice to quit. Therefore, similarly to the 1730 Act, the right to double rent arises only when the tenant holds over after he has served a notice to quit and, therefore, is in fact a trespasser and the landlord treats him as such. If the tenant can prove that he genuinely believed that he had the right to remain in the premises, he may be able to defend the claim.
If you require any further information about the issues raised in this article, please contact Anna Gora on 01604 463113 or alternatively click here to email Anna.