This can be a particular problem when T sublets, and the sub-T then vacates a few days before the expiry of T’s own lease. How easy is it for T to then reoccupy the premises and thus claim a right of renewal? In a recent case, the lease demised office premises ‘together also… with the easements and rights specified’, which included ‘the right during normal business hours… to use the parking spaces’. What happened was that T sublet the offices but retained the parking spaces, which were used in connection with its own adjoining business. The sublease expired three days before the main lease, and during those three days: (i) T continued to use the car parking spaces as before, and (ii) T had the premises refurbished, with new carpets laid and new IT equipment installed. But, on the expiry date, L changed the locks and said that T was not in ‘occupation’. The court disagreed:

the car parking space: T’s use of the car parking space was sufficient to amount to ‘occupation’ for the purposes of LTA 1954. Despite it being an incorporeal right, it did amount to ‘premises’;

the offices: T was in occupation of the offices for the three-day period. The contractors were there on T’s business and T itself did not have to be physically present. It is sufficient for T to use the premises:

‘as an incident in the ordinary course of conduct of business life, provided that the premises were occupied by no other business occupier and are not used for any non-business purpose.’ (Bacchiocchi [1998]).

Cases of this sort always depend on their own facts, but this is a neat illustration of the ease with which a T who has sublet the whole of its business premises may get back into occupation immediately before the expiry of the contractual term, and then claim a renewal. In practical terms, a T in this situation should do everything possible to make it clear that occupation is being resumed (eg move in some desks, and preferably people). Pointon York v Poulton [2006] EWCA Civ 1001, discussed in [2006]
174 Property Law Journal 3.