Breaking up is hard to do

As the property group’s sole trainee, I am given tasks from both the commercial and residential sub-groups.  Recently, I was tasked with reviewing and summarising the terms of a tenant break clause for a client who wanted to exercise it to end their lease early.

A key issue was that the lease did not include an express provision for the refund of rent paid in advance of the break date.  The tenant paid on a quarterly basis and the break date fell just after a quarter day.  It is well established law that, for any such refund, there must be an express provision for repayment by apportionment of rent paid in advance. 

At the same time that I was researching this area, the Supreme Court handed down judgment in the long-running case of Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another [2015] UKSC 72 (2 December 2015), which confirmed this position.

Background

Marks and Spencer (“M&S”) was the tenant under four identical subleases running from 25 January 2006 to 2 February 2018.  The landlord was BNP Paribas Securities Services Trust Company (“BNP Paribas”).  Rent was payable on a quarterly basis and the leases contained a provision for a tenant’s break clause if M&S gave BNP Paribas 6 months’ prior written notice before the set break dates.  For the break clause to take effect, there had to be no rent arrears and M&S were to pay the landlord one year’s rent.  Crucially, there was no provision in the leases requiring BNP Paribas to refund any overpayment of rent at the break date. 

M&S served a break notice on the landlord to determine the lease on 24 January 2012 and subsequently paid the quarterly rent for the period 25 December 2011 to 24 March 2012 and the one year’s rent, as required.  Consequently the break notice was effective and the lease determined on 24 January 2012. 

M&S then brought a claim against BNP Paribas primarily for the recovery of the overpayment of rent for the period between the effective break date, 24 January 2012, and the next quarter day, 25 March 2012.  M&S was successful at first instance, but the Court of Appeal reversed the decision.  M&S appealed to the Supreme Court.

The Supreme Court Judgment

The Supreme Court upheld the Court of Appeal’s decision.  One of M&S’s main arguments was that such a term was implied by certain wording in the lease.  However, the Supreme Court confirmed that a term should only be implied if required for business efficacy or if it passed the officious bystander test, i.e. the implied term is so obvious that it goes without saying.  

In this case, the parties had carefully and fully considered the content of the leases, including the provisions of the break clause.  Other provisions providing for payments between the parties on the operation of the break clause highlighted this careful consideration and therefore it would be inappropriate for the court to imply any further terms. 

The Lords additionally looked at the apportionment of rent payable in advance and confirmed that, unless there is express provision for this, any overpayment of rent was not repayable except under exceptional circumstances.  The Lords pointed out that this principle had been the same when the leases were entered into by the parties and that the leases were both full and professionally drafted. 

This judgment serves as a reminder of the existing law relating to repayment of rent paid in advance and the importance of providing for this expressly in the lease to ensure that the tenant is able to recover on the operation of a break clause.

Posted by Katherine Yu, trainee in the property practice group.

Katherine started her training contract with B P Collins in May 2015, after joining the firm as a paralegal in April 2015. Katherine graduated from the University of St Andrews with a joint honours degree in International Relations and Modern History. She went on to study the Graduate Diploma in Law at the College of Law and the Legal Practice Course at BPP in Holborn.

A lucrative roof over your head?

The Olympics have officially arrived!  In the UK we love athletics!  Or that is what the media would have us think.  But, to me, their attempts to convince us that people in this country actually care about athletics fly in the face of all recognised research (i.e. a quick poll amongst my friends and reports that the UK is the most obese nation in Europe).  People seem more concerned with the traffic problems the Games will cause…    

However, all jokes aside, there is no denying that the deluge of tourists pouring into the nation’s capital will bring a massive economic benefit.  Some people have been quick in seeking to capitalise on this opportunity. 

The BBC reported in May 2012 that many tenants in east London were being evicted from their homes with little or no notice by their unscrupulous landlords in readiness for wealthy tourists seeking accommodation close to the Olympic arena. Properties typically rented for £350 per week were being marketed for £6,000 per week.

Of course this behaviour is deplorable and potentially illegal.  Evicting a tenant without proper notice – or harassing tenants – can lead to a maximum custodial sentence of 2 years.  It is important for both the tenant and the landlord that their respective rights are properly protected and a well drafted tenancy agreement or lease will ensure this is the case.  The residential property group here at B P Collins LLP can provide bespoke leases for its clients and advise on all of the associated issues, including the procedure under the Housing Act 1988.

Commercial tenants may also want to participate in similar, less condemnable, behaviour by subletting their properties to retailers for the duration of the Games.  The permission of the landlord may be needed (to avoid forfeiture of the lease or a claim for damages) but often, if it is needed, consent cannot be unreasonably withheld and the activity can prove lucrative for a tenant.  The commercial property group at B P Collins LLP has much experience on advising on short term leases, both inclusive of rent or those based on turnover rent, and on licences to occupy on a short term basis.

Whether a commercial or residential premises owner, make sure you play fair during the Games this summer.

Posted by Matthew Crockford, trainee in the property practice.

Matthew started his training contract with B P Collins LLP in January 2012. He graduated in 2010 from The University of East Anglia with a 2:1 (Hons) in Law before moving on to the Oxford Institute of Legal Practice to study the LPC, achieving a Distinction. In his spare time Matthew enjoys playing football (mostly 5-a-side) and watching Tottenham Hotspur FC whenever possible.  Interestingly he used to be in a heavy metal band, but grew out of the idea!