What happens when a business tenant stays in occupation after a contracted-out lease expires and continues paying rent? In EE Ltd and Hutchison 3G UK Ltd v London Borough of Wandsworth [2026] UKUT 299 (LC), the Upper Tribunal considered whether that conduct created a periodic tenancy or left the operators as tenants at will.
The distinction matters as a periodic tenancy could give the tenant security of tenure under the 1954 Act, while a tenancy at will does not and can easily be terminated by either party. The Upper Tribunal found that, on the facts, the operators were tenants at will.
Background
EE and Hutchison 3G occupied a rooftop telecommunications site at Castlemaine House, Wandsworth. Their lease excluded the security of tenure provisions of the Landlord and Tenant Act 1954. In practical terms, the lease ended at contractual expiry without the statutory right to a renewal lease normally available to qualifying business tenants. The lease expired in 2013, but the operators remained in occupation and continued paying rent quarterly.
The First-tier Tribunal reached the opposite conclusion, finding that a quarterly periodic tenancy had arisen. On appeal, the key question was what the parties’ conduct after expiry showed about the basis of the operators’ continued occupation. Their status also determined whether they could apply for a new agreement for the telecommunications site under the Electronic Communications Code.
The starting point: Javad v Aqil
Paying rent after a lease expires does not, by itself, make the occupier a periodic tenant. That is the important starting point from Javad v Aqil. The question is what the parties objectively intended, taking all the circumstances into account.
Where there is continued occupation and periodic rent payments, a periodic tenancy may seem to be the sensible inference. But Javad recognised that payment of rent, while important, is only one part of the assessment.
Why Wandsworth is different
In Erimus Housing Ltd v Barclays Wealth Trustees (Jersey) Ltd, negotiations for a new formal lease were the most significant factor pointing towards a tenancy at will, despite rent continuing to be paid after the contracted-out lease expired.
In Wandsworth there were no negotiations for a new tenancy immediately after expiry and the traditional inference may have been that a periodic tenancy had arisen. Even so, the Upper Tribunal considered the parties’ earlier decision to contract out of the 1954 Act highly significant. There was no evidence that they had changed their minds later on about the decision to contract out. The Tribunal considered that fact, by itself, a reason to infer a tenancy at will.
The other circumstances were consistent with that conclusion. The operators’ requests for consent to upgrade their equipment were treated as neutral. Later rent demands referred to the lease having expired and the operators “holding over”, indicating that the landlord was seeking to protect itself against an inference that a new arrangement had arisen.
Do not let lease expiry drift
For landlords and tenants, the practical lesson is simple: do not leave the basis of continued occupation unresolved. Wandsworth reinforces a cautious approach to implying a periodic tenancy from occupation and payment of rent alone.
That matters particularly after a contracted-out lease expires. A periodic tenancy cannot itself be contracted out of the 1954 Act and, if the Act applies, can give a business tenant a statutory right to remain and seek a new lease. A tenancy at will does not.
The decision also comes against a wider backdrop of potential reform. The Law Commission has published two consultation papers inviting views on possible reform of the 1954 Act, making this an area to keep under review.
Key takeaways
Do not rely on rent payments alone: Continued occupation and periodic payments are only part of the picture. The parties’ intentions must be assessed against all the surrounding circumstances.
Previous contracting out can be important: Wandsworth shows that an earlier decision to exclude 1954 Act protection may carry significant weight when assessing the basis on which occupation continues after expiry.
Plan for expiry: Landlords and tenants should decide how any continued occupation will be documented rather than allowing a contracted-out lease simply to drift beyond its expiry date.
Conclusion
Wandsworth does not mean that every tenant holding over after a contracted-out lease will be a tenant at will, so the risk of an implied periodic tenancy remains. Instead, it reinforces the fact-sensitive approach established in Javad and applied in Erimus. The practical message is straightforward: where a contracted-out lease is approaching expiry, both landlords and tenants should consider what happens next rather than leaving the legal basis of continued occupation uncertain.
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