The simplest position is where the tenant is protected by the Landlord and Tenant Act 1954 (“1954 Act”). The old tenancy then ‘continues’ until either side serves a statutory notice. Even then, the tenant can apply to renew, and the landlord can only resist on the statutory grounds.
Another usually straightforward situation is where the old tenancy was contracted out of the 1954 Act and the tenant holds over whilst negotiating a new lease. This normally creates a ‘tenancy at will’, which either side can terminate immediately. That leaves the tenant in a precarious position, so it is often better to agree a short term, contracted-out tenancy to cover the negotiations.
A trickier situation is where the old tenancy was contracted out and the tenant holds over and pays rent, with no discussion about its status. Landlords try to avoid this because a court might infer a new periodic tenancy, which may be protected by the 1954 Act.
Critically, we say ‘might’ as this is not automatic; it depends on the facts. The inference of a periodic tenancy is a last resort or a defaulting presumption where there is no other satisfactory explanation for the tenant’s occupation and payment of rent. Duration often matters: a few weeks or months is unlikely to be enough, whereas several years makes the inference more likely. Even then, the court or tribunal must consider all the facts.
This is what happened in EE Limited and another v London Borough of Wandsworth [2026] UKUT 299 (LC). Although the case concerned telecommunications operators in the Tribunal, the lessons apply equally to other commercial occupiers and the County Court. EE and H3G held a ten-year contracted-out rooftop lease which expired in February 2013. The operators stayed put and kept paying rent quarterly, the council kept accepting it, and nobody signed a new agreement.
At first blush and given the length of time, there was a strong case for inferring a periodic tenancy, and the First-tier Tribunal did so. On appeal, however, the Upper Tribunal held that the operators were only tenants at will. The key factor was that the original lease had been contracted out: this strongly indicated that neither party intended the holding over to give the operators more protection than before, and there was no evidence that either had changed its position. The tribunal also noted that the operators had asked in writing for a new agreement and that the council’s invoices were marked “LEASE EXPIRED, HOLDING OVER” and “WITHOUT PREJUDICE”. The operators were therefore in a precarious position and could not compel a new tenancy. The decision is a reminder that the court will not infer a periodic tenancy from payment of rent, even over many years, if other factors show that no such arrangement was intended.
The takeaways for tenants are:
- Plan ahead: start renewal discussions well before lease expiry, so you are not left holding over by default.
- Know where you stand: check whether your lease is contracted out. If it is, expect your landlord to argue that you are a tenant at will, with no statutory security of tenure.
- Read your rent demands: wording such as "holding over" or "lease expired" is evidence, even when it seems to have been added without much thought.
- Watch what you write: correspondence, including requests for consent, will be examined closely, so be clear about the basis on which you are asking.
- Keep a full paper trail: in this case the parties could not explain how the rent had increased; gaps like that leave the outcome to inference.
- Take advice early: your status affects how secure your occupation is, how you can renew, and how much leverage you have in negotiations.
- Document your occupation and do not assume: a seemingly stable arrangement can become a contested battleground when one party's commercial interests change.
