Is Flat Above Shop Residential or Commercial?

Kent Coast Property Investments v Ward [1990] 45, E.G. 107 

Where a demise consisted of a corner shop with accommodation above, and the shop was found to have been occupied for a business, the entire demise was subject to the Landlord and Tenant Act 1954 Part II.

T was the tenant of premises which appeared to be a corner shop with accommodation over. 

When L purported to give T notice of the termination under Part II of the Landlord and Tenant Act 1954, T did not apply for a new tenancy under s.29 of the Act but contended instead that he had never run a business from the premises and was accordingly a residential tenant and protected by the Rent Act 1977. 

The judge decided upon all the evidence that T had for material and significant time up to the issue of proceedings occupied the shop for business purposes. He accordingly made an order for possession of the demised premises. 

On appeal, T argued, among other things, that possession should not, in any event, have been ordered of the accommodation above the shop.

Held, dismissing T's appeal, that section 23(1) provides that Part II of the 1954 Act applies to premises part of which are used for a business carried on by the tenant; and that, having found the shop to have been occupied for business purposes, the judge had thus correctly treated the entire demises as subject to Part II of the 1954 Act.