Q&As

Does an agreement between landlord and tenant to withdraw a tenant’s break notice result in a new lease, even if the break was conditional and the conditions may not have been met?

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Produced in partnership with Georgina Muskett of Charles Russell Speechlys LLP
Published on: 31 July 2023
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This Q&A assumes that the subject lease concerns property in England.

Once served, a notice cannot be unilaterally withdrawn. A notice can only be ‘withdrawn’ or the right to enforce it waived, with the consent of the party to whom the notice is given.

The effect of this in law is that a new lease is created by implication which takes effect from the expiry of the break notice (See Practice Note: Break clauses and notices—exercising breaks and conditions precedent under ‘Implied lease following withdrawal by consent’). There are obvious downsides if a new implied lease is created. For example, the new lease will not be contracted out of the Landlord and Tenant Act 1954 (LTA 1954) and any guarantors to the existing lease will be released.

In contrast, the position is different if the break is conditional and the conditions have not

Georgina Muskett
Georgina Muskett

Solicitor, Charles Russell Speechlys LLP

Georgina advises clients on resolving contentious property issues in both the commercial and residential spheres, including in the specialist fields of telecoms and service charges. Career highlights include achieving success for a landlord client in opposing the grant of a renewal lease to Santander, on the basis of a proposed redevelopment (Santander UK plc v LCP Estates Limited [2018] EWHC 2193 (Ch)). Successfully defending an application under section 84 of the LPA 1925 by a long leasehold tenant who sought to vary its lease user restrictions. The decision in Edgware Road (2015) Limited v. Church Commissioners for England [2020] UKUT 0104 (LC) preserved the Church Commissioners’ ability to control the management of their estate. She also assisted in successfully obtaining vacant possession of a rooftop of a block of flats in Wembley against a number of telecoms operators, to allow the block to be sold for redevelopment.

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