non domestic rates

reddevil58

Hi there,

I have a question that I hope someone on this forum can enlighten me with the answer.
Up untill 2 years ago I rented on a month to month basis, by way of a licence (non exclusive) a unit from my local council. A problem has occurred by way of bailiffs been called in by the councill for non payment. When I left 2 years ago I was (I thought up to date)But the council have tried to bill me for the year after I left, and I also have discovered they say I owe from the previous 2 years before this. I have sent of for a full statement, and they have subsequently dropped their claim for 2008-2009, but still say I owe in part for 2 previous years. I have found receipts that I have had from the council, but are not on their statement, I need more time than they have given me to go through more paper work before the bailiff re attends, as I am sure I have paid all that I owe. Is there a way to do this that the council have to take note of, it is obvious that the debt is in dispute.
That is the background, my question stems from internet research that suggests that non domestic rates are not chargeable to a company or individual that does not have exclusive occupancy of a building. My licence agreement clearly stated that it did not give me exclusive occupancy of the building, and that it was of a temporary month by month basis.
I look forward to anyones input....thanks

lincroft1710

If the licence permitted you to occupy the whole of the unit you are responsible for any rates payable during your occupancy. Short term occupancy does not affect liability to pay rates. If you shared the unit with another occupier/business and there was no visible or stated division of occupation then they may be jointly liable. If (for example) your licence agreement stated you could only occupy a defined part of the unit, but you occupied the whole unit then you are liable for rates on the whole unit.

It would help if you could explain exactly what is meant by "non exclusive occupation" in your licence. What did you in fact occupy or were permitted to occupy?

reddevil58

Hi thanks for replying
To quote my Licence agreement
No assignment

1. 1This licence is personal to the licensee who shal have no right to exclusive possession or occupation of the unit which he may from time to time be permitted to use. The licensee shal not be entitled to assign the benefit of this licence or to sub licence, share or grant any rights over the unit.
2. The licensee acknowledges that the council and its agents have unrestricted rights of access at all times to the unit.

What i understand exclusive possession to be... is to occupy to the exclusion of all others, meaning no one else can enter the occupied property without the permission of said licence holder. The above quite clearly states that the licence holder does not have these rights, because the landlord or his assignees can enter at any time without the licence holders permission
regards

lincroft1710

From a rating aspect exclusive means that there is no other physical occupier. Despite what the terms of your licence state, in rating law you did have exclusive occupation.

CIS

I would agree with lincroft1710 from what you've posted.( I have done a business rates course but haven't worked directly in that role yet)

Generally speaking a contract between you and the landlord cannot over-ride the legislation.

With regards to exclusive use, its been found in case law that it doesnt always mean you have to even be the only user of the property. If means you have exclusive use for your business purpose, someone else may have access it for another use and you still be the one in exclusive occupation for rating purposes.

reddevil58

Thanks lincroft1710 and cis for you replies
here is some case law for you to consider with regards to my plight

Lord Russell of Killowen Rating
1 Citers
Subject to special enactments, people are treated as occupiers of land, land being understood as including not only the surface of the earth but all strata above or below. The occupier, not the land, is rateable; but the occupier is rateable in respect of the land which he occupies. Whether the person sought to be rated has the enjoyment of the land "to the substantial exclusion of all other persons" is a question of in fact is the occupation in respect of which the person is said to be rateable and, in that respect, it is immaterial whether the title to occupy is attributable to a lease or a licence.

Rateable occupation is occupying a hereditament so as to be liable to pay a rate. In the case of LCC v Wilkins (VO) [1957][58], the court brought together various prior cases to establish four essentials for rateable occupation:
Actual occupation — requires physical occupation of the property, in the sense that some use is made of it or control exercised over it. It is treated as a matter of fact, so the legal title may not always be relevant.[59]
Exclusive occupation — Also a matter of fact, although legal title will often play a part. The courts have laid down down that where there are competing occupations, the facts must be considered to establish where paramount control lies.[60] For example, in Westminster City Council v Southern Railway Co & Others [1936], the court had to consider the level of control exercised by operators of various stalls and shops on a railway station, compared to that of the railway company.[61]


Rochdale Canal Company v Brewster (1894) 2 Q.B. 852: A portion of one of Liverpool docks was appropriated to the use of the Rochdale Canal Company by the Mersey Docks and Harbour Board, in whom the docks were vested. The company had agreed to pay a yearly rent, to pay tenant’s rates and taxes, to keep the premises in good and tenantable repair, to allow the servants of the board free access thereto at all times, to confirm to the regulations of the board and to work the premises in conformity with the regulations of the Harbour Master; the board reserved a right of re-entry without notice in case of non-payment of the rent.

It was held that this agreement must be construed together with the special Act [….] by which the Docks Board had power to make it, and it was not intended and did not in fact confer upon the canal company such an exclusive occupation as to make them rateable in respect of the premises.

Lopes, LJ said that:

“The question in this case is whether the board had parted with exclusive possession, so as to make the canal company liable for rates. It is the intention of the parties, and not the words of the agreement only, that must be looked at, for it is the substance rather than the form of the transaction that must determine the question of exclusive possession.”

Westminster City Council v Southern Railway Co (1936) HL 24 RIT 278: This leading case considered the question of when a part [a book stall] within a large hereditament [Victoria railway station] was “so let out as to be capable of separate assessment”. Lord Russell said (at p 326) that:

“The question in every such case must be one of fact, viz, whose position in relation to occupation is paramount, and whose position in relation to occupation is subordinate; but in my opinion the question must be considered and answered in regard to the position and rights of the parties in the premises in question, and in regard to the purpose of the occupation of those premises.”

He also went on to say (p 328) that:

“in each case the degree of control must be examined, and the examination must be directed to the extent which its exercise would interfere with the enjoyment of the occupant of the premises in his possession for the purposes he occupies them.”
The emphasis is that the facts of the each case need to be established very clearly where exclusivity is at issue; exclusive occupation for a particular purpose, paramount control and secondary (or subordinate) occupation are all dependent on the facts on the ground, taken together with the position, rights and relationships of the parties in occupation.

And Lord Davy added:

It is clear that exclusive occupation does not mean that nobody else has rights in the premises. The familiar case of landlord and lodger is an illustration. The cases
[*] show that if a person has only a subordinate occupation subject at all times to the regulation of another, then that person has not occupation in the strict sense for the purposes of rating, but the rateable occupation remains in the other, who has the right of regulation and control….

what do you think?

lincroft1710

I am aware of these cases, but my opinion remains that notwithstanding the terms of your licence, you and you alone were in de facto occupation of the unit and had exclusive use for this period and therefore liable to pay the rates.