If yes, you need to read this…

A Section 25 notice is an important legal document that can affect a GP tenant’s occupation of the surgery premises. Ignore it at your peril because you could lose important legal rights under the Landlord & Tenant Act 1954 (L&TA).

In this blog, we take a closer look at the L&TA, including the benefits it offers tenants and the challenges you may face if your lease is excluded from the Act. We also set out some steps you can take to reduce the risk of losing your occupational rights when your lease is up for renewal.

What is the Landlord & Tenant Act 1954?

The L&TA is an important piece of legislation that governs the relationship between landlords and tenants of commercial premises. It was introduced to offer greater protection for tenants, and the rights and obligations covered by the Act will be in addition to any terms and conditions set out in your lease.

Is your lease inside or outside of the L&TA?

Check your lease to see if you are protected by L&TA. Unless your lease includes a specific clause contracting you out of the L&TA, then you are likely to be protected by L&TA. This will also generally be the case even if you do not have a formal documented lease in place but have been in occupation and paying rent for a number of years. Most GP practices in NHSPS buildings are protected by L&TA.

Inside the L&TA – benefits to GP tenants

If your tenancy is covered by the L&TA then you will benefit in a number of ways, including:

1. You will have an automatic right of renewal. That means that even when the fixed term of your lease ends, you have the right to remain in occupation and to apply to the court for the grant of a new lease.
2. If you and your landlord fail to agree on the terms of a new lease then the court can make key decisions, such as the length of the new lease and the rent payable. In our experience it’s very rare for a primary care lease to be litigated in this way.
3. When it comes to the length of the new lease, the court is much more likely to agree to a time period requested by a tenant, than by a landlord.
4. If your lease payments are linked to the DV’s assessed rent (as all GP surgery rents should be), a court is unlikely to permit a new rent which permits a landlord to break this link, or indeed to permit the introduction of new or significantly varied service charges.

What is a Section 25 notice and what happens next?

If you have a protected tenancy then it will automatically continue under the same terms once your lease has expired unless you or your landlord serve a notice under L&TA bringing the tenancy to an end.

With surgery leases, landlords often use the Section 25 procedure as a positioning tactic and to preserve the value of their property portfolio. Examples are that they want you as a tenant but they want a new lease in place with a higher rent; or they want you to engage in settling a service charge debt. You can read more about the NHSPS service charge disputes here. As a GP tenant with guaranteed rent reimbursement, you are in a good position to negotiate and we have helped many clients reduce their historic service charge debt in return for entering into a new lease. However, you need to be strategic. Whilst it’s usually better to have your lease terms written down in a lease so there is certainty, sometimes there’s a good reason not to want a new lease in place – maybe there’s a merger coming up, retirements, or a new development on the horizon. All this needs to be thought through when deciding how to respond to a Section 25 notice.

There are strict time requirements as to when a Section 25 notice can be served and it must be served on the correct people. We can check this for you – if there are errors the notice may be invalid.

Negotiating a new lease

Once the Section 25 notice has been served on you, your original tenancy will come to an end on the specified termination date. If your landlord has confirmed that they do not oppose the grant of a new lease, you have a strict deadline within which to negotiate and agree a new lease. The deadline in the Section 25 notice can be extended by mutual agreement and it is not unusual to see a number of extensions being agreed while the terms of the new lease are negotiated and the lease is being approved by the District Valuer. All extensions must be agreed in good time before the deadline and in writing. If that deadline passes and no extension has been agreed with your landlord and you have not made an application to the Court (see below), then you will lose your right to seek a lease renewal from the Court under the L&TA. Here at DR Solicitors we manage these Section 25 dates very carefully so as not to compromise a tenant’s position.

If your landlord will not extend the deadline or in circumstances where a new lease cannot be agreed, we can make an application to the Court and that application must be made by the date specified in the Section 25 notice. That’s why you must not leave it too late before asking the landlord for an extension. If an application to Court is necessary a much more extended and complicated procedure is involved, with those proceedings lasting a number of months and quite probably more than a year, unless a lease is agreed along the way. Those proceedings are also costly and to be avoided. It is therefore usually in everyone’s best interests for lease terms to be agreed without the necessity of an application to the Court. I’m happy to say that it’s highly unusual for us to have to make a Court application for a GP lease.

Outside the L&TA – difficulties for GP tenants

If your lease excludes the rights under the L&TA, then there are some key issues you may face:

• When your lease comes to an end on the specified termination date, you will have to vacate the surgery regardless of the impact on patients. Plan ahead! Diarise the lease termination date and get in touch with us to discuss next steps at least 12 months ahead of time. The nearer you get to the lease ending, the weaker your negotiating position with your landlord
• It will be entirely up to your landlord whether or not they decide to offer you a new lease; if they do, then it could be on very different terms to your previous lease including terms which are not going to be approved by the DV. For instance the rent demanded under the new lease may be more than what the District Valuer is prepared to approve and authorise.

While you may be keen for your lease to be protected by the L&TA, your landlord may prefer it is excluded. This means it could become an important part of your negotiations. The arguments for and against excluding it will depend on many factors, including the buoyancy of the current rental market, and your future plans and those of your landlord.

Protecting your practice

The L&TA is a particularly complex area of law, with strict procedures that have to be followed to the letter, or you risk losing your protected rights. Unfortunately, even a seemingly trivial technical error in the processing of notices given in accordance with the L&TA can cause them to be invalid, resulting in some serious and potentially very costly problems for the practice.

We recommend you always seek assistance from a legal professional at least a year before your lease is due to expire (whether or not you wish to renew the lease or bring it to an end) and in the event that you receive any notice from your landlord seeking to terminate or change the terms of your occupation (such as a Section 25 notice).

If you are thinking of leaving a GP partnership then make sure your name comes off the lease when you leave otherwise you could receive an unwelcome Section 25 notice in the post. The partnership deed should also contain robust leasehold succession planning in it to ensure the surgery lease is always in current names.

As with all contract or lease negotiations, it is advisable to seek the advice of an experienced legal team, who can advise you on your specific case and personal circumstances.

For more information about this, or any other legal issue relating to your practice, please contact Daphne Robertson on 01483 511555 or d.robertson@drsolicitors.com