What can form part of a holding for the purposes of the Business Tenancies (Northern Ireland) Order 1996

April 16, 2014

In the case of Horne and Meredith Properties Limited –v- Cox and another (2014) we previously looked at the issue of opposition to renewal of the tenancy under article 12 (1) (c) of the Business
Tenancies Order.

The English Court of Appeal’s decision in Horne is also worthy of further comment with regard to the Courts consideration of the term “holding” as it appears in Section 30 (1) (c) of the Landlord and Tenant Act 1954 which is entirely replicated in Article 12 (1) (c) of the Business Tenancies (Northern Ireland) Order 1996.

“holding” is defined in Section 23 (3) of the 1954 Act (and again in article 2 (2) of the 1996 Order in the same terms as follows:-

“….the property comprised in the tenancy, there being excluded any part thereof which is occupied neither by the Tenant nor by a person employed by the tenant and so employed for the purposes of a business by reason of which the tenancy is one to which this part of the Act applies”

The Court of Appeal took the opportunity to consider whether the litigation over the rights of way and car parking spaces was connected with the holding or more particularly the tenant’s use or enjoyment of the holding, as required by ground (c).

Despite both rights being incorporeal hereditaments not capable of physical occupation, the Court held that both sets of rights formed part of the holding and that all the elements comprised in the second limb of ground (c) were in place. The Court relied on an earlier Court of Appeal decision in Pointon York Group –v- Poulton (2006) where it was decided that the right to park is a property interest capable of occupation in a technical sense and the prior decision of the Court of Appeal in Nevill Long & Co –v- Firmenich & Co (1984) as authority for a right of way constituting property for the purpose of Section 23 of the 1954 Act.

Please note; the content of this article is for information purposes only and further advice should be sought from a professional legal advisor before any action is taken.
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