Double Value claim

Landlord and Tenant Act 1730

Tenant remaining in possession when note entitled to do so

TFS Stores Limited v The Designer Retail Outlet Centres (Mansfield) General Partner Limited

[2019] EWHC 1363 (Ch)

Summary

The claim for double value will only succeed where the tenant has acted "wilfully". This case dealt with the meaning of "wilfully" in the contect of the 1730 Act.

Facts

The tenant, a large retail operator with over 200 stores nationwide sought to establish that six of its leases at a number of outlet centres were protected by the security of tenure provisions provided by ss24 – 28 of the Landlord and Tenant Act 1954, even thought the parties had, in every case, served warning notices and executed statutory declarations before either entering into agreements for lease or taking a lease as required by s38A of the Landlord and Tenant Act 1954 and Schedule 2 of Regulatory Reform (Business Tenancies) Order 2003.

The court held that the procedure had property been followed and all the leases were contracted out.  (For this aspect of the case see the contracting out page in the Buseinss Lease Renewal section of the site).

The landlord sought double value under s1 of the Landlord and Tenant Act 1730, on the basis that the tenant remained in occupation after the expiry of the contracted-out lease “wilfully”.

Held

The claim for double rent failed.

"Wilfully” in this context requires more than a merely deliberate act. So long as the tenant’s position is considered to be one where he has said "I shall stay on. I think I have a right to do so", as opposed to "I will stay on, although I have no right to do so", the tenant is not staying on "wilfully".

Here the tenant had received legal advice as to its position shortly before the leases expired, and in the absence of evidence that the tenant’s claim was not advanced bona fide, it could not be said to have acted "wilfully".

French v Elliott [1960] 1 WLR 40 applied.

 

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