PART 4The Pubs Code Adjudicator and the Pubs Code
Pubs Code
43Pubs Code: market rent only option
1
The Pubs Code must require pub-owning businesses to offer their tied pub tenants falling within section 70(1)(a) a market rent only option in specified circumstances.
2
A “market rent only option” means the option for the tied pub tenant—
a
to occupy the tied pub under a tenancy or licence which is MRO-compliant, and
b
to pay in respect of that occupation—
i
such rent as may be agreed between the pub-owning business and the tied pub tenant in accordance with the MRO procedure (see section 44), or
ii
failing such agreement, the market rent.
3
The Pubs Code may specify—
a
circumstances in which a market rent only option must or may be an option to occupy under a tenancy;
b
circumstances in which a market rent only option must or may be an option to occupy under a licence.
4
A tenancy or licence is MRO-compliant if—
a
taken together with any other contractual agreement entered into by the tied pub tenant with the pub-owning business in connection with the tenancy or licence it—
i
contains such terms and conditions as may be required by virtue of subsection (5)(a),
ii
does not contain any product or service tie other than one in respect of insurance in connection with the tied pub, and
iii
does not contain any unreasonable terms or conditions, and
b
it is not a tenancy at will.
5
The Pubs Code may specify descriptions of terms and conditions—
a
which are required to be contained in a tenancy or licence for it to be MRO-compliant;
b
which are to be regarded as reasonable or unreasonable for the purposes of subsection (4).
6
Provision made under subsection (1) must include provision requiring a pub-owning business to offer a tied pub tenant a market rent only option—
a
in connection with the renewal of any of the pub arrangements;
b
in connection with a rent assessment or assessment of money payable by the tenant in lieu of rent F1(whether or not it results in a proposal that the rent, or amount of money payable, should increase);
c
in connection with a significant increase in the price at which any product or service which is subject to a product or service tie is supplied to the tied pub tenant where the increase was not reasonably foreseeable—
i
when the tenancy or licence was granted, or
ii
if there has been an assessment of a kind mentioned in paragraph (b), when the last assessment was concluded;
d
after a trigger event has occurred.
7
The Pubs Code may specify what “renewal” means in relation to a tenancy or a licence for the purposes of subsection (6).
8
In subsection (6) “pub arrangements”, in relation to a tied pub, means—
a
the tenancy or licence under which the tied pub is occupied, and
b
any other contractual agreement which contains an obligation by virtue of which condition D in section 68 is met in relation to the premises.
9
In this Part a “trigger event”, in relation to a tied pub tenant, means an event which—
a
is beyond the control of the tied pub tenant,
b
was not reasonably foreseeable as mentioned in subsection (6)(c),
c
has a significant impact on the level of trade that could reasonably be expected to be achieved at the tied pub, and
d
is of a description specified in the Pubs Code.
10
In this Part “market rent”, in relation to the occupation of particular premises under a tenancy or licence which is MRO-compliant, means the estimated rent which it would be reasonable to pay in respect of that occupation on the following assumptions—
a
that the tenancy or licence concerned is entered into—
i
on the date on which the determination of the estimated rent is made,
ii
in an arm's length transaction,
iii
after proper marketing, and
iv
between parties each of whom has acted knowledgeably, prudently and willingly, and
b
that condition B in section 68 continues to be met.