UK: Business Tenancies: Validly Excluding A Tenant's Security of Tenure

Landlords should note that recent legislative amendments relating to the administration of oaths have not changed the requirements for a tenant's statutory declaration to be valid.

A business tenant automatically benefits from a right to security of tenure under Part II of the Landlord and Tenant Act 1954.  This right can be excluded by agreement between the parties before the tenancy is entered into, provided that the correct procedure is followed.   

The landlord must first serve a notice on the tenant and the tenant must then swear a declaration.  If the notice is served less than 14 days before the tenancy will be entered into, the declaration must be  "statutory" in nature. 

Previously, section 1(3) of the Commissioners for Oaths Act 1889 and section 81(2) of the Solicitors Act 1974 prohibited a solicitor from administering declarations where he or she is acting for one of the parties in the matter.  These sections were repealed on 1 January 2010 by Schedule 23 of the Legal Services Act 2007. 

However, this does not mean that a solicitor may now administer declarations for his or her own client.  The prohibition was simultaneously reintroduced in section 183(3) of the Legal Services Act 2007, which states that "a relevant authorised person may not carry on the administration of oaths in any proceedings in which that person represents any of the parties or is interested". 

This means that a statutory declaration must still be sworn before an independent solicitor in order for it to be valid.  Landlords should accept nothing less from a tenant in order to ensure that the tenant's security of tenure rights have been excluded effectively.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

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The original publication date for this article was 07/09/2010.