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Notices

This page deals with various matters relating to the effectiveness of break clause notices.


Acknowledgement of notice required

Orchard (Developments) Holdings Plc v Reuters Ltd
[2009] EWCA Civ 6

Where a lease provided that a break notice would only be valid where the landlord acknowledges receipt, the notice only became valid when the acknowledgement was made. An acknowledgement made after the break date was therefore too late for the notice to be effective.

Defects in the notice

Dates

Trafford Metropolitan BC v Total Fitness UK Ltd
[2002] EWCA Civ 1513


Facts

Lease of a car park with a break clause allowing L to terminate on giving two weeks notice. Three different notices given. The relevant one for the purposes of the reported case was served on 8 October 2001 and was expressed to give 17 days notice but also stated for the avoidance of doubt that the date for closure of the car park was midnight on 24 October 2001. If one were to count the days applying the usual rule (derived from Lester v Garland (1808)), that the notice period specified in the notice runs from the day after the notice was served, the notice expired after 24 October 2001. It was therefore argued that there was an ambiguity that made the notice invalid.

Held

The notice was valid. The test was simply: what would a reasonable recipient understand the notice to mean? (Mannai Investment) By setting out the exact date it would have been clear to a reasonable recipient that the notice was to expire at midnight on 24 October 2001. As more than the minimum notice period required by the tenancy had been given the notice was valid. The position would have been different had the minimum notice period not been given.


Peer Freeholds Ltd v Clean Wash International Ltd
[2005] EWHC 179 (Ch)

Facts

Tenant's break clause which stated:
    "If the Tenant shall desire to determine this Lease at the end of the third year of the Term and shall give to the Landlord six months previous notice in writing of such desire .. the lease would come to an end."
T wrote a letter seeking to exercise the right which said:
    "Please take this letter as notice that we intend to exercise our break option at the end of the third year of this lease on the 22nd August 2004."
In fact 22 August was the date of the annual rent review. The end of the third year of the term was 7 November 2004. L denied that the lease had been validly terminated.

Held

A break notice will be valid if it is sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when it is intended to operate. That test postulates that the reasonable recipient is left in no doubt that the right reserved is being exercised. (Mannai Investment) [1997] AC 749 and Garston v Scottish Widows Fund & Life Assurance Society [1998] 1 WLR 1757. The notice in this case was effective.

Evans Lombe J:
    "It is clear that a reasonable landlord with knowledge of the provisions of clause 6.8 of the lease would have understood that the letter was intended to operate the provisions of that clause in order to break the sublease at the date for which clause 6.8.provided, namely, the 7th November 2004 and that the date of 22nd August 2004 contained in the letter as being the date for the breaking of the lease was a mistake on the tenants part."

Tenant's name wrong

Proctor & Gamble Technical Centres Ltd v Brixton plc
[2003] EWHC 2835 (Ch)

A tenant's break clause notice was served, which stated the name of the original tenant rather than the name of the current tenant company. Both companies were part of the same group. Nevertheless on the facts of this case it could not be said that the notice was sufficiently clear to a reasonable recipient to be valid.


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