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Repayment of rent

Break clause

Apportionment of rent

Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd
[2013] EWHC 1279 (Ch)

Summary

Following the exercise of a break clause, the tenant was entitled to a refund on rent paid in respect of the period after the break date.

Facts

T was the tenant under a lease, which contained a break clause that allowed the lease to be determined by T on 24 January 2012.

The rent was to be paid "yearly and proportionately for any part of the year by equal quarterly instalments in advance on the Quarter days ..." The break clause was conditional on:
  • T having paid a full quarter's rent for the December quarter, and
  • T paying a penalty of an amount equivalent to a year's rent.
The lease did not contain an express provision entitling T to a refund of the rent from the break date to the end of the quarter.

Six months before the break date T served notice on its landlord (L) to exercise the break clause. In December 2011, L invoiced T for the rent due on the December quarter day. The invoice was for the rent from the December quarter day to the break date. T in fact paid a full quarter's rent. The lease ended on 24 January 2012 in accordance with the break clause.

T then asked L for a refund of the "the overpaid rent". L claimed that T was not entitled to a refund, and stated that the invoice it had issued had been incorrect, as it should have been for a full quarter's rent. T issued proceedings for a repayment of the overpaid rent.

Issues

The main issues before the court related to the following
  • Whether T was entitled to a refund due to an express term in the lease;
  • Whether T was entitled to this due to a term to be implied into the lease;
  • Whether T was entitled to claim in restit ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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