Summary

An incorporeal hereditament, such as the right to use a parking space, could constitute premises for the purposes of the Landlord and Tenant Act 1954 s.23 . In order to occupy premises for the purposes of s.23 a tenant did not have to be physically present in the premises if he was using them in some other way as an incident in the ordinary course or conduct of business life, provided that the premises were not occupied by another business occupier and were not used for any non-business purpose.

Facts

The appellant landlord (L) appealed against a decision that the respondent tenant (T) was in occupation of property for the purposes of the Landlord and Tenant Act 1954 s.23 so that the tenancy was continuing. L had let offices to T under a lease that had included the right to use certain parking spaces during normal office hours. T had sublet part of the premises. That underlease expired three days before T's lease. T informed L of its intention to re-occupy those premises when the sub-tenant vacated. The sub-tenant decorated and carpeted the premises to fulfil its obligations under the terminating lease. The day after the underlease expired T's employee (P) visited the premises to check progress of the carpet laying. Before T could further prepare the premises for its own occupation, L changed the locks and clamped a number of cars that T's employees had parked in the parking spaces. The judge found that the parking spaces could be premises, that they were comprised in the tenancy and that they were occupied for the purposes of s.23(1) of the 1954 Act so that the office tenancy was a protected one. He further held on the facts that the offices had been occupied since T had had the right to exclude others from them and it was unnecessary that there should be any physical presence provided the premises were being used in connection with a business activity, and that if physical presence was necessary that requirement was satisfied by the presence of P and the carpet layer after the expiry of the underlease. L submitted that (1) incorporeal hereditaments were not included in the definition of premises and could not be occupied for the purposes of s.23 of the 1954 Act; (2) T had not been in occupation of the offices since it had not started to carry on business in the premises before expiry of the lease.

Held

(1) An incorporeal hereditament constituted premises for the purposes of the Landlord and Tenant Act 1927 s.17 , Whitley v Stumbles (1930) AC 544 applied. Parliament had not intended to depart from that meaning in s.23 of the 1954 Act. An incorporeal hereditament could constitute premises for the purposes of s.23, Jones v Christy (1963) 107 SJ 374 considered. Under the lease the right to use the parking spaces during normal business hours was conferred to the exclusion of L unless L chose to substitute equivalent spaces. There was in effect a right to occupy the spaces for discontinuous periods of parts of a day but occupation could occur notwithstanding that the property was to be occupied for discontinuous periods, Smallwood v Sheppards (1985) 2 QB 627 applied, Land Reclamation Co Ltd v Basildon DC (1979) 1 WLR 767, (1979) 2 All ER 993 distinguished. On the facts as found by the judge the parking spaces had been occupied during business hours, Graysim Holdings Ltd v P & O Property Holdings 94 LGR 553 applied. (2) The judge was right that T was in occupation between the expiry of the two leases. In order to occupy premises for the purposes of s.23 a tenant did not have to be physically present in the premises if he was using them in some other way as an incident in the ordinary course or conduct of business life, provided that the premises were not occupied by another business occupier and were not used for any non-business purpose, Bacchiocchi v Academic Agency Ltd (1998) 1 WLR 1313 applied. Bacchiocchi was a case on s.38 of the Act but the word "occupy" had to have the same meaning in s.23. On the findings of the judge the activities of P were clearly incidental to the business. He was checking that the premises were properly equipped and suitable for the business to be carried on there. The judge had also been entitled to find that the carpet layer was performing an activity for the purpose of T's business even though he was employed by the sub-tenant for the purpose of fulfilling their obligation under the sub-tenancy.

Appeal dismissed.