Landlord and Tenant Act 1954 Part II

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The procedure for “contracting out”

The notice

The warning notice must be in the prescribed form and served on the tenant (by the landlord or its solicitors) or in case of joint tenants on each of them individually. The notice must include the tenant’s full name and address in case of an individual and in case of a company, its name, registration number and registered address. The notice can also be served on the tenant’s agent i.e. a person authorised by the tenant to accept service of the warning notice.

The declaration

When a warning notice is served on the tenant, it must make a declaration that it understands what rights it is giving up. The declaration can be either statutory or simple. If the notice is served at least 14 days before the new lease is entered into, the tenant can make a simple declaration, otherwise is must make a statutory declaration. The statutory declaration must be made in front of an independent solicitor (not someone at the firm instructed by the tenant) or commissioner for oaths for a fee of £5. Solicitors generally insist that a statutory declaration is made to avoid the argument as to the validity of the notice if the same is not dated. As in the case of the warning notice, the declaration must be in the prescribed form.

The declaration can be made either by the tenant or by a person authorised by the tenant to do so. In case of a company, it will need to be an individual, a director as it will have the necessary authority to do so. If the lease is taken in the name of an individual that person must make a declaration. It is common practice that the tenant authorises in writing its solicitor to make the declaration on its behalf.

Can the notice be served, the declaration sworn and lease completed on the same day?

Yes, provided that the “contracting out” procedure took place first and the lease was completed following on from that.

Read Part I

For advice on leases, please contact Agata Marosz.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.