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Who Are the Occupiers of Your Site and What Are Your Obligations?

on Monday, 22 October 2018.

The Autumn Term is a busy time for academies welcoming students and staff back to school. If you have acquired new schools over the summer, you may also be busy managing those estates.

We are often asked by academies what their options and obligations are when allowing third parties to occupy or use part of their site.

It is important for academies to carefully consider the type of paperwork used to document any occupation by a third party. If there is a dispute, the nature of the occupation 'on the ground' will be considered, as well as any documentation produced in determining the legal classification of the arrangement and therefore how to bring it to an end.

In summary, occupiers of school sites can usually be classified in three ways.

Tenants

Common examples of this can be a tenant under a substation lease (eg an electricity company) or long term occupiers of facilities such as children's centres, leisure centres or sports facilities.

Tenants are granted 'exclusive possession' of an area and are able to exercise the rights of 'an owner' in relation to that part of the site for a period of time. Short term temporary users of a site (see below) cannot really call the part of a site they occupy their own and are only able to use that part of a site for that purpose, often with others for a specified (and very limited) time period.

If your academy occupies its site under a lease from the Council, the terms of that lease will need to be checked to see whether it permits the grant of an underlease and on what terms. Please get contact us if you need advice on this. 

Licensees

These tend to be short term temporary users occupying part of the site, for example for an evening or a number of evenings a week. This can be for classes, amateur dramatics or sports clubs.

This type of occupier does not have an 'interest' in the land and the academy is simply granting permission for that occupier to be there for a limited duration of time. Most academies have standard hire terms to regulate when and how this type of occupier can use the school site and the charges for their use. We have developed templates for typical hire arrangements and therefore can assist you with putting these arrangements in place.

Where an academy has a lease from the Council, the model academy lease provides that an academy can share occupation with certain types of occupier without having to obtain the Council's consent under the lease.

Residential Occupiers

Some academies also provide staff with accommodation. The most common type of residential arrangement is where a caretaker occupies a house either on the main site or adjacent to the main site.

The basis on which an employee occupies such accommodation can be important because it will determine how the academy is able to ensure that the occupier leaves the property when they cease to be an employee. Usually, the employee will occupy as either a tenant or a service occupier. There are a number of tests applied to determine whether an employee is a genuine service occupier, including:

  • the occupation is essential for the proper performance of the employee's duties

  • the occupation is not essential for the proper performance of those duties, but it enables the employee to perform them better and there is an express term in the contract of employment requiring the employee to occupy the accommodation

Your obligations to obtain the Secretary of State's consent to the grant of any of these arrangements will differ for each of the three scenarios. We can also advise on the different consent requirements that apply.


Managing your site effectively is a key task and one that is sometimes overlooked with the pressures on other operational requirements.

To discuss any issues you have concerning third party occupiers and ensure you are using the correct documentation, please contact Robin Rajanah, in our Property team, on 0117 314 5255.

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