Law Commission consultation on business tenancies: modernising security of tenure

Our provisional conclusion is that the test used by courts to decide the “other terms” of a renewal tenancy (which is, essentially, that set out in section 35 of the 1954 Act and interpreted in the case of O’May) should be retained. Do consultees agree?

Please explain why.

As explained in Consultation Question 18, our provisional conclusion is that the test used by courts to decide the “other terms” of a renewal tenancy should be retained. Notwithstanding that provisional conclusion, we invite consultees’ views on a guided approach to resolving disputes where the other term(s) in dispute relate to environmental matters. The approach would cause environmental matters to be a “relevant circumstance” for the court to consider when applying the existing law. 

The scope of the “relevant circumstance” that the court should consider could be “narrow” (limited to the MEES Regime and its underlying policy of bringing buildings up to certain minimum standards) or “wide” (concerned more generally with environmental and sustainability concerns). 

It would be possible to incorporate additional “relevant circumstances”. For example, the nature and extent of environmental terms being agreed in other units in the same building; and/or any benefit to, or adverse impact on, the landlord and tenant of including or not including the term(s) sought. 

We invite consultees’ views on the possibility of reform outlined above, together with any evidence to support any view expressed.