Q&As

If a commercial lease contains provision for rent reviews in 2011, 2014 and 2017, but none of these have ever been implemented, can the landlord now implement the rent reviews back to 2011 and charge interest on the increased rent from 2011?

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Produced in partnership with Desmond Kilcoyne
Published on LexisPSL on 31/05/2017

The following Property Q&A produced in partnership with Desmond Kilcoyne provides comprehensive and up to date legal information covering:

  • If a commercial lease contains provision for rent reviews in 2011, 2014 and 2017, but none of these have ever been implemented, can the landlord now implement the rent reviews back to 2011 and charge interest on the increased rent from 2011?

If a commercial lease contains provision for rent reviews in 2011, 2014 and 2017, but none of these have ever been implemented, can the landlord now implement the rent reviews back to 2011 and charge interest on the increased rent from 2011?

Many (particularly older) forms of rent review clause require the landlord or tenant to take certain steps in connection with the rent review procedure set out in the lease (eg service of notices or counter-notices, or references to a third party).

Often, the time for taking such a step will be defined or ascertainable and, if a deadline is missed, the question arises as to the consequences for that party in the context of the rent review. The answer, broadly, will turn on the well-known contractual issue: is time of the essence? If it is of the essence, the consequences may be severe; but if it is not, then the rent review machinery allows that party to take the necessary step out of time without those adverse consequences. See Practice Note: Rent review—when is time of the essence?

Following the decision in United Scientific Holdings v Burnley Borough Council, the House of Lords identified a general presumption is that time is not of the essence for a rent review clause. However, that presumption can be rebutted if there are sufficient contra-indications, such as where:

  1. the

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