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No apportionment of rents permitted unless the lease allows it

29 July 2014

In last autumn’s seminar on break clauses Nick Cox reported on the case of Marks & Spencer v BNP Paribas.

This case had suggested that if the lease included a break “premium” then a tenant might not have to pay rent for a full rent period if a break date fell between payment dates.

This decision has now been overturned by the Court of Appeal who have ruled that a tenant is only able to apportion rent, or to recover any overpayment of rent that results from the service of a break notice, if the lease specifically says so.

We advise that when agreeing terms at the outset, the precise date for any break to operate should, wherever possible, coincide with a payment day. However, if that is not the case then tenants should not risk failing to operate a break properly by apportioning rent payments, unless the lease allows them to do so. The obligation to pay rent in full on the payment days will be a condition precedent for almost all break notices to be effective.

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Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
Nick Cox LLB (Hons)
Consultant, solicitor
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Nick Cox
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