Published on January 13th, 2018 | by FII Reader0
The Future for Airfields? You have Control
By Brian Doyle.
The recent FII article on the future for Galway airport highlights several issues that may affect the regional airports and others in the near future. While some airport owners seem incapable of generating business, with the exception of fees to the authors of feasibility studies, others are eyeing up possible alternative uses for the acreage, having learnt nothing from the past about the lack of demand and the disaster that can arise through wishful thinking and white elephant projects.
Flying Clubs based at these airfields may be feeling somewhat vulnerable. Pressure from new owners, including Local Authorities can be considerable, particularly where the Flying Club’s operations may be at odds with the owners plans even where these plans have no basis in reality.
So what rights if any, do the Flying Clubs enjoy at their current locations? Do they have to fold up their operations just because there is a new owner or the current one wants to redevelop? Finding a new home will be expensive for the club and they will have to deal with the wonders of the planning system. Either of these challenges could well see the end of the club.
Flying Clubs at airfields, large or small may well enjoy the protection of our landlord and tenant legislation. In short, in accordance with the Landlord and Tenant (Amendment) Act 1980 any business in occupation of a tenement for more than 5 years has a right to remain in occupation for any period up to 20 years (and renewable thereafter). For the purposes of the 1980 Act a club comes under the definition of a business, as do all charities and societies. A tenement means a premises, essentially a structure of some sort and there is High Court case law to say that the structure need not be substantial or permanent. It does not need to have planning permission. The right to continue in occupation also extends to all property that is subsidiary and ancillary to the premises. In other words not only are hangars included but so also are taxi-ways, fuel tanks and runways.
The tenant/occupier must pay the ‘market’ rent. However, the owner must prove that rent to the satisfaction of the Circuit Court if necessary. With little or no demand for most of our airfields that would be very difficult to prove. There is no ‘market’ evidence. They only have to pay market rent for the premises occupied not for all of the ancillary property. Think of a shop in a shopping center and the acres of car parking surrounding it. The tenant pays for the shop, not the car park. There is nothing in the Act that requires the occupier to pay for services or rates. They owner must provide ‘quiet enjoyment’. Therefore they can do nothing to restrict the occupiers use and enjoyment of the property. A large repairs bill should also be treated as a rouse to get them out. It is largely avoidable.
Apply all of this to a typical Flying Club. Most if not all would fall under the definition of ‘business’ in the 1980 Act. Most have some structure, a hangar, shed, club house of some sort. The 5 year occupancy rule includes all predecessors in title. The Act applies to Local Authorities. These conditions will be well met by most of the clubs that I am familiar with.
The Act states that any agreement to avoid the act is unenforceable. So don’t be concerned if some committee worthy agreed to forget about the law of the land or otherwise. That agreement is of no use to the owners. It’s unenforceable. Owners agreeing to extend the lease by a year or some other time is a ploy often used to nudge the occupier along towards the exit sign. It is of no consequence. Equally, if you don’t have a ‘lease’ it does not matter. The rights are based on occupancy not paper. It also does not matter if an existing agreement is called a licence. They can call it what they like. Quite simply if the occupier is in possession for more that 5 years the Act applies and they do not have to move. The Club can assign or sublet in most cases if they wish. In other words rent out space to other aircraft owners.
New owners will have been fully aware of these issues before they bought the airfield in the first place, or they should have. Indeed, it is often the reason why they got it for a ‘handy’ price as redevelopment is very much restricted because of current occupiers rights.
If owners argue that they wish to redevelop then there are some very exceptional grounds whereby they may succeed. But they are all based on having planning permission in the first place and they all require that they fully compensate the occupier to move. Many owners will not go through the expense of costly design and planning permission until they have vacant possession.
Occupiers, including Flying Clubs have considerable power in these situations. If you want to move to that new green field site down the road it may well be affordable as it could be in the best interest of the owner to assist you to relocate, or you can stay put. You have control!!!
Brian Doyle is a Chartered Surveyor at B.T. Doyle & Associates specialising in commercial property. He has held a PPL for many years. He can be contacted at 087-6701356.