Legal Q&A: Tenants not agreeing to licence transfers

Q. I have a tenant who holds the premises licence in his name for a premises I own. I am taking steps to remove him and, as a result, the relationship between us has broken down. I have talked to the licensing authority about the transfer of the premises licence to my name, and they have said I must have the consent of the current premises licence holder. I know I will not be able to obtain the tenant’s consent — where does this leave me with regards to the operation of the premises and the premises licence?​​

A.​ We have, during the years, advised many licensees and tenants about the premises licence and using it as a bargaining chip when tenancies end or pub companies wish to sever relationships.

In 2005, when justices’ licences became obsolete and were replaced with premises licences, the approach of the freeholder or the pub company towards who should hold the premises licence varied. Conversion of the justices’ licence to the premises licence was reasonably straight forward and, in many instances, the individual holder of the justices’ licence became the premise licence holder. In other cases, the pubco became the licence holder for each of their pubs.

Rightly or wrongly, the licensing authority can sometimes be reluctant to get involved in what they say is a civil dispute between two parties who are arguing about who has the right to be in the premises. However, the Licensing Act 2003 makes provision for such disputes. Section 44 of the act provides an exemption for the applicant to transfer a premises licence to obtain the consent of the current holder if the applicant can demonstrate that “all reasonable steps” have been taken to obtain consent, and that if the transfer was granted, the applicant would be in a position to use the premises for the licensable activities identified on the licence.

To prove that “all reasonable steps” have been taken, copies of letters and or emails to the current licence holder requesting consent with attached consent forms should be provided to the licensing authority and they should suffice to satisfy the licensing authority that reasonable steps have been taken to obtain consent, and that, as the freeholder of the property, you are in a position to use the premises licence for the licensable activities that are authorised by the premises licence.

In such circumstances, it is important to keep all of the documentation that has passed between the tenant and yourself, in particular, with respect to requests for them to sign the consent form, which will transfer the premises licence to you at the determination of or at the end of the tenancy period.