NHS bodies can find that they come under pressure to allow service providers into occupation of premises without entering into formal occupational agreements, whether by way of lease or licence. Frequently the pressure comes from commissioners (both internal and external), who may have limited understanding of the contractual position relating to the property, simply seeing it as a commodity required for successful service provision.

In the world outside the NHS, a property owner as landlord would never allow a prospective occupier into occupation without contractual arrangements protecting both parties in terms of rights to occupy, payment of rents and expenses, obligations to repair and obligations to insure. In the absence of contractually agreed terms, statutory and common law assumptions and presumptions will come to bear, whether or not they reflect what the owner and occupier want and expect. Much of the benefit of negotiating those occupational arrangements derives from the discussion process and considering previously unthought of issues.

In the meantime, the NHS estate is being pressed to become more and more accountable and so property owners should not compromise their positon in terms of property risks.