Q&As

Following United Scientific Holdings Ltd v Burnley Borough Council; Cheapside Land Development Co Ltd v Messels Service Co where a commercial lease states that time is not of the essence but the rent review date is the same as a tenant break date, will this in effect make time of the essence requiring that the landlord trigger the rent review before the break date?

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Published on LexisPSL on 27/06/2019

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

  • Following United Scientific Holdings Ltd v Burnley Borough Council; Cheapside Land Development Co Ltd v Messels Service Co where a commercial lease states that time is not of the essence but the rent review date is the same as a tenant break date, will this in effect make time of the essence requiring that the landlord trigger the rent review before the break date?

Following United Scientific Holdings Ltd v Burnley Borough Council; Cheapside Land Development Co Ltd v Messels Service Co where a commercial lease states that time is not of the essence but the rent review date is the same as a tenant break date, will this in effect make time of the essence requiring that the landlord trigger the rent review before the break date?

The starting point is that in the United Scientific Holdings Ltd v Burnley Borough Council; Cheapside Land Development Co Ltd v Messels Service Co, the House of Lords held that the presumption is that time is not of the essence in the operation of a rent review clause. What the House described as contraindications in the lease might mean that the presumption would be displaced. This means however that unless time is expressly stated to be of the essence, or in the context of the other clauses of the lease, it is clear that the parties intended it to be so, a failure on the part of either party to meet time limits in the rent review mechanism will not be fatal to it being able to engage it. In that context, the presumption is strong, with even the use of the word ‘shall’ not of itself necessarily rebutting it.

Where the parties have made provision for what will happen when a

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