Commercial property disputes can move from irritating to serious very quickly. A tenant falling into arrears, a landlord refusing consent or a lease deadline being missed can affect income, business continuity or the value of an asset. When that happens, the question is not only whether to take legal action, but when to do it.
Starting litigation too early can waste time and money and it can make settlement harder. Leaving it too late can mean losing important rights or allowing losses to build. The right timing depends on the type of dispute, the urgency of the problem and whether the other side is engaging realistically.
This guide explains what commercial property litigation involves and when it may be sensible to move from negotiation into formal court proceedings.
What counts as litigation in a commercial property dispute?
In this context, litigation means issuing a court claim or in some cases starting tribunal proceedings, to resolve a dispute. It is the formal legal step that asks a judge to decide the outcome.
Most commercial property disputes don’t start with litigation. They begin with letters, notices or negotiation. That early stage is often enough to settle matters, particularly where the issue is a misunderstanding or a repair or payment problem that can be corrected.
Litigation is usually the last step, taken only when the dispute cannot be resolved informally or when time pressures leave no realistic alternative.
Situations where you may need to act quickly
Some commercial property disputes involve strict deadlines or urgent risks. In those cases, waiting too long can seriously damage your position.
Rent arrears are one example. If arrears are growing and the tenant is not cooperating, a landlord may need to move quickly to protect their income and consider enforcement options. The longer arrears build, the harder they may be to recover.
Another example is a break clause dispute. Break clauses often have exact requirements and strict dates. If a landlord or tenant misses the relevant notice period or fails to meet the break conditions, they may lose the right to end the lease. Where a break date is approaching and there is disagreement about compliance, early action is essential.
Lease renewal disputes can also require fast decisions. Where a tenancy has security of tenure, notices must be served within specific windows. If those deadlines are missed, the right to renew or oppose renewal can be lost.
Urgent disputes can also arise where immediate court protection is needed. This might include trespass, obstruction of access, unauthorised works or a development that is about to interfere with rights such as rights of light. If the harm is imminent, an injunction may be the only realistic way to stop it.
Finally, there are cases where evidence could be lost if you delay. If key documents may disappear, witnesses may move on or site conditions could change, taking early legal steps can help preserve your ability to prove the claim later.
Situations where litigation is usually premature
On the other hand, many disputes feel urgent but are not ready for court. Courts expect parties to try to resolve matters first and they may penalise a party in costs if they issue too soon.
Service charge disputes often fall into this category. These usually need a clear breakdown of costs and a proper exchange of information before anyone can sensibly decide whether a claim is necessary.
Dilapidations disputes also require care. There is a recognised process for lease end dilapidations claims and issuing proceedings before the correct steps are followed can undermine the claim.
Consent disputes, such as disagreements about assignment, subletting or alterations, are another example. If the landlord refuses consent, the tenant usually needs to understand the legal basis for that refusal and give the landlord a chance to set out their position. Court action makes sense only once that exchange has taken place.
Minor repair disagreements, nuisance complaints or early stage lease interpretation issues are often best dealt with through formal correspondence first. Sometimes they settle as soon as each side understands the lease properly.
The pre action stage: what you should do before issuing
Before starting a claim, you should take a structured pre action approach. This is not just good practice, it is what the court expects. Even when you think you are clearly in the right, skipping this stage can lead to cost penalties later.
Start by reviewing the lease, title documents or any side agreements carefully. Most commercial property disputes turn on the wording of these documents and small details often make a big difference.
Next, set out your position clearly in writing. This is usually done through a formal letter of claim or a compliant notice. The letter should explain what has happened, why you believe the other side is in breach and what outcome you want.
You should also gather and share key evidence early. That may include rent schedules, inspection reports, photographs, service charge accounts, surveyor input or correspondence showing requests and refusals. Where possible, ask the other side to disclose documents you need to understand their case properly.
At this stage, it is usually sensible to invite negotiation or mediation. Courts want parties to explore settlement before litigating and many disputes resolve once the legal position is clarified. In lease end dilapidations cases, there are specific steps and expectations about how claims should be presented and responded to so following that process helps avoid unnecessary disputes about procedure.
Signs that it is time to litigate
Litigation becomes appropriate when pre action steps have been taken and the dispute is still not moving forward.
A common trigger is a lack of engagement. If the other side ignores correspondence, repeatedly delays or refuses to set out a meaningful position, issuing a claim may be the only way to move the dispute on.
Another trigger is a looming deadline. If a statutory or contractual time limit is approaching, such as a lease renewal window or a break date, you may need to issue proceedings to preserve your rights. Waiting in the hope of settlement can be risky if it is likely to leave you out of time.
Litigation may also be necessary where the breach is continuing and causing measurable harm. For example, if a tenant is still in arrears with no plan to clear the debt or a landlord continues to block assignment without lawful reason, a court order may be required.
Finally some disputes need a judge’s decision because only the court can grant the remedy you need. This includes possession orders, declarations about lease rights, relief from forfeiture or injunctions to stop unauthorised activity.
The risks of delaying too long
Delay is one of the most common reasons commercial property cases become harder than they need to be.
If you miss a notice deadline, you can lose the right to terminate, renew, oppose renewal or enforce a breach. This is particularly important in lease renewal and break clause contexts.
Delaying can also weaken your negotiating position. The other side may assume you are not serious or they may gain leverage as arrears grow or evidence fades.
There is also the practical issue of loss. The longer a breach continues, the greater the financial damage may become. Rent arrears increase, repair issues worsen and business operations can become more disrupted. By the time you litigate, you may be trying to recover losses that could have been avoided with earlier action.
The risks of starting too soon
Starting litigation too early can create a different set of problems.
Courts may penalise a party who issues without following pre action conduct. Even if you win, you may not recover all your costs if the court decides you failed to take reasonable steps to settle first.
Litigation can also harden positions. Once proceedings start, negotiations often become more defensive and the commercial relationship may deteriorate. In some disputes, particularly where landlord and tenant need to continue working together, that may be counterproductive.
Issuing too early can also lock you into a strategy before you fully understand the facts or the evidence. If you later discover a weakness in your position, you may already have spent significant funds and escalated the dispute unnecessarily.
How legal advice helps with timing
A commercial property solicitor’s job is not only to argue your case, but to guide you on when to take each step.
Good advice will identify any deadlines that matter, assess the strength of your position and help you decide whether negotiation, mediation or litigation is the most appropriate next move.
Solicitors also ensure that notices and letters are compliant, that evidence is organised properly and that you do not accidentally weaken your position by acting too soon or too late. In commercial property disputes, that timing and tactical planning often makes the difference between a quick resolution and a costly battle.
Get clear advice on your situation
Please note that this article is solely for informational purposes. It’s not a substitute for legal advice. We encourage readers to contact Osbourne Pinner for case-specific guidance.
Start with a free 30-minute consultation at our offices or remotely. You can speak to us on a video call or visit our offices.
If you’re based in London, whether that’s in Sidcup, Southall or Stratford, we’re close at hand. In London, we’re based in Harrow, Canary Wharf and Piccadilly Circus. And if you’re based in Manchester our new North-based office is close by too. Arrange your consultation by calling 0203 983 5080, emailing [email protected] or using the form below.
