Q&As

An operator is a tenant under a lease. The lease is protected by the 1954 Act and the Electronic Communications Code. The operator had an unconditional break option in the lease and served notice to terminate the lease. The operator failed to vacate (ie remove the electronic apparatus) on the break date and wants to remain on the property. Rent was paid for a full year (so part of the rent relates to a period after the break date) after the break notice was served, but before the break date. What are the operator's options?

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Published on LexisPSL on 23/07/2015

The following Property Disputes Q&A provides comprehensive and up to date legal information covering:

  • An operator is a tenant under a lease. The lease is protected by the 1954 Act and the Electronic Communications Code. The operator had an unconditional break option in the lease and served notice to terminate the lease. The operator failed to vacate (ie remove the electronic apparatus) on the break date and wants to remain on the property. Rent was paid for a full year (so part of the rent relates to a period after the break date) after the break notice was served, but before the break date. What are the operator's options?
  • Was the break option effective?
  • Code rights

Was the break option effective?

If the full year’s rent paid prior to the break date was paid in accordance with the terms and obligations of the lease, ie the monies fell due prior to the termination of the lease, then this is very unlikely to give rise to an implication that the landlord, in accepting those monies:

  1. recognised any right of occupation of the tenant beyond the break date under a new 1954 Act protected periodic tenancy or

  2. had reached an agreement with the tenant that the notice should be treated as having been withdrawn, in which case, a new (Landlord and Tenant Act 1954 (the 1954 Act) protected) lease on the same terms would impliedly have been granted (see our Practice Notes: Break clauses and notices—exercising breaks and conditions precedent and How do break clauses operate?)

Accordingly, if the break option was validly exercised, the previous lease will have come to an end on the break date, at which point, the operator will no longer occupy under a lease agreement. However, see below in respect of their Electronic Communications Code (the Code) rights.

In terms of whether or not there is a right to pro rata apportionment of the monies paid for the period after the break date, recent case law has found that rent payable in advance is not apportionable once it falls due,

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