Serving notices—potential issues
Produced in partnership with Rachael Bott of CMS
Serving notices—potential issues

The following Property guidance note Produced in partnership with Rachael Bott of CMS provides comprehensive and up to date legal information covering:

  • Serving notices—potential issues
  • Who should serve a break notice and who should a break notice be served upon?
  • Can a break notice be served by or upon a party’s agent?
  • Service—contractual provisions
  • Service—statutory provisions
  • Section 196 Law of Property Act 1925
  • Section 23 Landlord and Tenant Act 1927
  • Service—common law rules
  • Interaction between break notices and statutory security of tenure regimes
  • Practical steps when serving a break notice
  • more

This Practice Note addresses some of the common issues encountered when serving a break notice. A break notice is a contractual notice. Therefore, whilst some general principles may be drawn from case law, it is the terms of the lease which will govern the form and content of a break notice and the lease must be carefully reviewed and fully complied with in every case.

Who should serve a break notice and who should a break notice be served upon?

A break option may be exercised only by the parties in whom the relevant legal estates are vested. A break notice served by or upon a party in whom the lease is not vested will be invalid.

It is therefore critical that the party serving the break notice has correctly identified the relevant parties by undertaking the necessary title searches:

HM Land Registry

If the parties’ titles are registered, the parties’ identities can be ascertained by ordering official copy entries from HM Land Registry (OCEs).

The original parties to the lease will not necessarily be the parties entitled to exercise the break option if the lease has been assigned. Unless it is expressly stated otherwise, the benefit and burden of a break clause will pass automatically on assignment.

A trap for the unwary when dealing with registered land is the 'registration gap' which arises