Business Lease Renewals: The New Law and Practice by Philip Freedman Eric Shapiro & Kenvin Steele

Author:Philip Freedman, Eric Shapiro & Kenvin Steele
Language: eng
Format: epub
Publisher: Routledge

10.1 Provisions governing court applications

The reasons why a court application may have to be made has been explained at 1.4, 4.1 and 4.8. Unless the landlord and the tenant agree otherwise, as mentioned below, the application to the court must be lodged at court no later than the expiry date specified in the landlords section 25 notice, or the day before the expiry date specified in the tenants section 26 request (section 29A). This time-limit is called the “statutory period”.

The parties may agree to extend the “statutory period” (section 29B). Their agreement to extend it must be recorded in writing (section 69(2)). Further agreements to extend it are permissible, provided they are made before the expiry of the last agreed extension (section 29B(2)).

In claims where the landlord is not opposing renewal, either party may make the application to the court to determine the terms of renewal (section 24(1)). If, on the other hand, the landlord is opposing renewal, the tenant may apply to the court for an order renewing the tenancy (section 24(1)) or the landlord may apply to the court for an order ending the current tenancy without any renewal (section 29(2). In the latter case, if the landlord is unsuccessful in opposing the renewal, the claim then proceeds as if there were an application for an order renewing the tenancy (section 29(4)(b)).

The party commencing the claim is referred to in the proceedings as “the claimant”. The other party is the “defendant”.

Any application by the landlord may only be withdrawn if the tenant agrees (section 24(2C); section 29(6). This rule is needed because otherwise the tenants rights of renewal could be lost. The tenant however may require the court to dismiss a landlords application for a renewal of the tenancy if the tenant decides not to seek a new tenancy (section 29(5)).

In order to avoid duplication of court applications, sections 24(2A) and 24(2B) provide that, once a party has commenced court proceedings under section 24(1) or section 29(2) and has served those proceedings on the other party, that other party is barred from making his own application under section 24(1). It was plainly intended that there should be a similar rule that the landlord cannot apply to the court under section 29(2) for a termination order once either party has made and served on the other an application under section 24(1). However, there is an unfortunate lacuna in section 29(3) which simply bars the landlord from applying to the court once an application under section 24(1) has been made, but it is silent as to the landlord having to have been served with that application. The words about service which appear at the end of sections 24(2A) and 24(2B) do not appear in section 29(3). Consequently a landlord may inadvertently infringe section 29(3) if he makes an application under section 29(2) not realising that the tenant has already made a section 24(1) application which has not yet been served on him and he is therefore unaware of it. Presumably

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