Space Invaders - Unauthorised Use Of Space Outside A Tenant's Demise
Published 23 October 2014
Landlords may be interested to hear that a recurring problem for commercial tenants is their failure to secure appropriate rights for the use of space outside their demise. This crops up time and time again regarding air-conditioning equipment and similar plant requiring external space.
In most leases, tenants don't have any implied rights to use space outside their demise, nor can they acquire rights against their landlord to retain the use of anything they've installed in the past. A well advised tenant will negotiate the necessary rights when taking a new lease or assignment, but not all tenants' lawyers are alert to these issues. You may therefore wish to enquire as to the tenant's intentions when you grant any new lease, or consent to an assignment.
It may also be worthwhile making periodic inspections to establish whether or not your tenants have carried out any unauthorised works outside their demise or are using space outside their demise. If you become aware of any such unauthorised use, you may be able to obtain an injunction to prevent any further use and/or obtain damages. In practice, parties usually agree that the position should be regularised by means of a lease variation or retrospective consent, in return for payment by the tenant of suitable consideration, whether it be a premium or increased rental or otherwise.