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Commercial Landlord obtains Interim Possession Order following Break In!

Commercial Landlord obtains Interim Possession Order following Break In!

Charles Grossman, Senior Associate of Druces LLP and Howard Lederman of Counsel (42BR Barristers) successfully obtained an Interim Possession Order (“IPO”) on behalf of their commercial landlord client.

An urgent application to Court was required, following the landlord peacefully forfeiting a long lease of  non-residential premises after the tenant under the lease (“the Tenant”)  fell into rent arrears of circa £340,000. After peaceable re-entry by the landlord in reliance on the forfeiture clause in the lease, it transpired the Tenant unbeknownst to the Landlord had supposedly sold its leasehold interest in the premises to another entity (“the Assignee”).  However, individuals unknown to the Landlord broke back into the premises. The landlord peacefully secured possession  with  enforcement agents for the second time but yet again unidentified individuals broke into the premises. The landlord had no option but to make an urgent application to Court seeking an IPO pursuant to CPR 55.25.

IPO Conditions

In order to obtain an IPO the following conditions must be satisfied as set out in CPR 55.21:

(1) An application for an IPO may be made where the following conditions are satisfied –

(a) the only claim made is a possession claim against trespassers for the recovery of premises;

(b) the claimant –

(i) has an immediate right to possession of the premises; and

(ii) has had such a right throughout the period of alleged unlawful occupation; and

(c) the claim is made within 28 days of the date on which the claimant first knew, or ought reasonably to have known, that the defendant (or any of the defendants), was in occupation.

(2) An application for an IPO may not be made against a defendant who entered or remained on the premises with the consent of a person who, at the time consent was given, had an immediate right to possession of the premises.

The Facts

In this case, the Assignee claimed to have been assigned the lease 18 months ago - without the landlord’s  knowledge or consent. The Assignee  said they had sub-let the premises to another company (“the Sub-Tenant”). By the time of the hearing of the IPO the Assignee had gone back into possession, having “terminated” the sub-tenancy.   The condition at CPR 55.21(2) was satisfied. 

The Hearing

The Landlord argued that   the Assignee did not re-enter the premises with the consent of a person who had an immediate right to possession. By that date the lease had been forfeited.  The Tenant did not have any further involvement with the premises after the forfeiture. Alternatively, the Sub-Tenant did not enter with the consent of a person who had an immediate right to possession. The Assignee did not have an immediate right to possession and could not have consented to the sub-tenancy because the “assignment” had not been registered at H.M. Land Registry. Meaning the failure to register within 2 months as required by the Land Registration Act 2002, led to legal title reverting to the Tenant who (until the forfeiture) held the premises on trust for the benefit of the Assignee.

The Assignee argued that as an equitable assignee of the Lease  he was entitled to enforce the trust of the lease and had a right to possession, or the Court should treat him as if the trust  was enforced in his favour. 

Outcome of Hearing

The Court accepted the Assignee had the consent of the Tenant to enter into occupation some 18 months previously.  However, the  “chain of consent” was broken when the Assignee vacated the premises and the Sub-Tenant entered into occupation in the period before the forfeiture. By the time the Assignee returned to the premises (after the application had been issued) they did not do so with the consent of a person who had an immediate right to possession. The Court rejected the Assignee’s trust argument (referred above). It was not satisfied the Assignee would have been able to enforce such a trust given the breaches of agreement alleged against the Assignee by the Tenant.

The landlord in this case was awarded over £32,000 in costs of the various hearings including the initial IPO hearing and released from its undertakings.

Our View

IPOs can be very useful for landlords of commercial premises who find themselves with trespassers who will not leave. Breaching an IPO is a criminal offence and allows the police to intervene once the order is made. Before an IPO is made,  commercial trespassers will usually only attract civil liability. The police may not be willing to use their powers against trespassers in  part V of the Criminal Justice and Public Order Act 1994. 

The first IPO hearing is also listed within 3 working days of the application so ensures speedy action can be taken. However, landlords and tenants will need to be very mindful of the conditions set out in CPR 55.21 and  whether the trespasser(s) had the consent of a person with an immediate right to possession. 

If the application  fails they could find themselves on the wrong end of a sizeable costs order and liability on a cross undertaking in damages. 

It is therefore important landlords and tenants of commercial premises obtain specialist advice at an early stage should they be seeking to secure possession of their premises from their tenant or anyone else!  

Charles Grossman (Senior Associate of Druces LLP) and Howard Lederman of Counsel (42BR Barristers) explain how they obtained an Interim Possession Order (“IPO”) on behalf of their commercial landlord client.

This video explores what can happen when unauthorised assignees and their licensees take possession of commercial premises.


3rd Feb 2025

Howard Lederman

Call 1982

Howard Lederman

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