Statutory Declarations and the LTA1954

The Court of Appeal (CA) (Males LJ giving the leading judgment) has dismissed a tenant’s (T) appeal and upheld the High Court’s decision that statutory declarations sworn by T were valid and that the parties had therefore validly contracted out of the security of tenure provisions of the Landlord and Tenant Act 1954 (LTA 1954).

T had sworn several statutory declarations confirming that the leases would be outside the LTA 1954. The statutory declarations did not specify an actual commencement date for any of the leases, but instead used various formulae for describing the date on which each term would commence, variously expressing the term commencement date as:

• The Access Date under the Agreement for Lease pursuant to which the tenancy of the premises will be entered into
• A date to be agreed between the parties
• The date on which the tenancy is granted

The CA held that the statutory declarations were “in the form, or substantially in the form” prescribed by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 (SI 2003/3096). The leases were therefore validly contracted out of the LTA 1954.

This is an important decision which addresses a practical question of significant importance to practitioners. It is often difficult to know with certainty, in advance, the exact date on which a lease will commence. It has therefore been common practice to use wording in the tenant’s declaration or statutory declaration that specifies the term commencement date in some other way. This is a welcome confirmation that, as the purpose of including the term commencement details in the statutory declaration is to identify the lease, the use of formula wording is acceptable, provided that the declaration read as a whole is sufficient to identify the lease (TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner Ltd; BMG (Ashford) Ltd v TFS Stores Ltd [2021] EWCA Civ 688 (14 May 2021).)

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