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Section 26 requests
Bogus s26 request
Introduction: Tenants served a request for a new lease under s26 of the 1954 Act. They did not actually wish to take a new lease they had found alternative premises. They served the notice simply to preserve their compensation rights, knowing that the landlord wanted to redevelop the site. The notice was nontheless valid.
Key facts:Contractual term expired on 24 December 1998.
T decided to leave. In November 1997 T exchanged contracts to purchase another site.
March 98 T served s26 notices purely for the purpose of obtaining compensation under s37.
L served a counter-notice under s26(6) opposing renewal but subsequently withdrew its opposition.
No application for new tenancy and T gave up occupation on 23 December 1998. Held: The notice was valid and, the landlord, having served a counternotice the tenants were entitled to compensation. A tenant is not required to have a genuine intention to take up a new tenancy when he serves his s26 request. Nor do the proposals for a new term stated in the request need to be genuine. Service of the notice is a statutory formality; a performative utterance!
Sun Life Assurance plc v Thales Tracs Ltd [2001] EWCA Civ 704; [2002] 1 All ER 64; [2001] 34 EG 100; [2001] L&TR 557.
Compare s25 notices where there is a statement of intention eg under s30(1)(g):L must have an honest belief in the ground: Betty's Cafe; Stadbroke v Mitchell.
But if the notice is given in good faith the fact that L is different at the date of the hearing does not matter - s25 is like a pleading (Marks v British Waterways Board [1963] 1 WLR 1008).
Break clauses and s26
A s26 request cannot be used to operate a break clause in a lease and then seek a new tenancy. The date of the new tenancy cannot be earlier than the expiry date in the lease.
Garston v Scottish Widows [1998] 2 EGLR 73, CA.
Article: Breakdown on renewals by Katie Bradford and Will Densham, Linklaters & Alliance Considers the relationship between break clauses and lease renewals, in particular in relation to redevelopment break clauses. Estates Gazette, 8 June 2002, p117).
New form
Since the reforms to Part II of the 1954 Act on 1 June 2004 there has been a new form of s26 request - Form 3.
Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 (SI 2004/1005).
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