Kishenin (t/a Beiderbeckes Hotel And Restaurant) v Kalkstein-Bleach & Ors

Factual and Procedural Background

The claimant seeks immediate possession of a property located at 1-3 The Crescent, Scarborough, North Yorkshire (the "property"), where a business known as Beiderbeckes Hotel & Restaurant operates. The claimant also requests a declaration that he is the sole beneficial owner of the business. The first and third defendants oppose the claimant's possession claim, while the second and fourth defendants did not appear and apparently assert no personal right to occupy the property.

The claimant alleges that the first and third defendants have been in unauthorised possession since 27 May 2013, with no valid agreement permitting their occupation. Even accepting the defendants' version of a meeting on that date as true, the claimant contends that any agreement expired after one year and was replaced by an unenforceable "agreement to agree" concerning rent based on a percentage of profits. Consequently, the claimant argues there is no enforceable tenancy post 27 May 2014.

The court was invited to proceed on assumed facts based on the first defendant's witness statement regarding the 27 May 2013 meeting. The claimant's legal position was developed in reply submissions, asserting the absence of consideration for the alleged one-year rent-free period and consequent termination of any licence by letters dated 5 March 2014. The defendants' entitlement to remain in occupation beyond that date was disputed.

The first defendant, representing himself, objected to proceeding on assumed facts and requested evidence from witnesses about the meeting, but the court declined to hear further evidence at that stage, focusing instead on legal consequences of the assumed facts.

Legal Issues Presented

1. Whether the claimant is entitled to immediate possession of the property from the first and third defendants.
2. Whether the claimant is the sole beneficial owner of the business operating at the property.
3. Whether any agreement reached on 27 May 2013 between the claimant and the first defendant created a valid and enforceable tenancy or licence.
4. Whether the alleged agreement to grant a rent-free period was supported by consideration.
5. Whether any purported agreement to agree on rent based on a percentage of profits constituted an enforceable contract or was void for uncertainty.

Arguments of the Parties

Claimant's Arguments

• The first and third defendants have been in unauthorised possession since 27 May 2013, lacking any legal basis for occupation.
• Even accepting the defendants' version of the 27 May 2013 meeting, the agreement expired after one year and was replaced by an unenforceable agreement to agree on rent.
• There was no consideration for the one-year rent-free period, making it a mere licence terminable by notice, which was given on 5 March 2014.
• Authorities on contract certainty support the position that an agreement to agree on rent percentage is void for uncertainty.
• The claimant is the sole beneficial owner of the business.

First Defendant's Arguments

• Objected to proceeding on assumed facts, asserting that the claimant's case relied on hearsay and requested evidence from witnesses about the 27 May 2013 meeting.
• Submitted that the rent-free year was intended to allow the defendants to turn the business around, consistent with the assumed facts.
• Did not dispute the assumed facts but contested the claimant's legal analysis of their implications.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded on the basis of assumed facts derived from the first defendant's witness statement about the 27 May 2013 meeting, as agreed by the parties at the hearing's outset. The key legal questions were whether there was consideration for the alleged one-year rent-free period and whether any subsequent tenancy agreement existed.

The court found it highly improbable that an experienced businessman such as the claimant would grant a rent-free year without consideration, concluding that, on the assumed facts, consideration likely existed for the initial one-year tenancy.

However, the court held that the alleged agreement for tenancy beyond 27 May 2014 was incomplete and void for uncertainty, as it depended on an agreement to agree rent based on an unspecified percentage of profits without a mechanism to fix rent. The cited authorities reinforced that such an agreement cannot constitute a valid lease.

Consequently, the first and third defendants had no valid tenancy after 27 May 2014 and were in unlawful occupation. The claimant was entitled to possession.

Regarding ownership of the business, the court noted no alternative claim was pursued and declared the claimant the sole beneficial owner.

The court also addressed procedural matters, refusing to hear further evidence on the 27 May 2013 meeting, as the parties had agreed to proceed on assumed facts.

Holding and Implications

The court granted immediate possession of the property to the claimant, ordering the first and third defendants to vacate. The court also declared the claimant to be the sole beneficial owner of the business operating at the property.

The defendants were ordered to pay the claimant's costs on a standard basis, to be assessed if not agreed.

The decision directly affects the parties by terminating the defendants' occupation and affirming ownership but does not establish new legal precedent beyond applying established principles of contract certainty and tenancy law.