Handing back an empty shell of a building did not fulfil a vacant possession break condition
Break rights have proved a fertile source of litigation over the last few years. Courts have consistently required strict compliance with the terms of those rights.
Break rights have proved a fertile source of litigation over the last few years. Courts have consistently required strict compliance with the terms of those rights and the recent decision in Capitol Park Leeds plc v Global Radio Services Ltd is no exception to this position.
The tenant had a right to break its lease on condition that it delivered vacant possession of the property to the landlord. The tenant had stripped out significant elements of the base build and landlord’s fixtures in the property and the landlord argued that, in returning the property minus those elements, it had not complied with the vacant possession condition.
The judge agreed with the landlord. One of the tests for determining whether vacant possession has been given is that there is no substantial physical impediment to the enjoyment of the property. That test was not satisfied where a tenant handed back an empty shell of a building which was dysfunctional and not capable of being occupied.
This case emphasises how important it is for a tenant negotiating a new lease to resist any requirement that a break right is conditional on the delivery of vacant possession. In this case, had the break right been conditional just on the tenant giving up occupation and leaving behind no subtenants or other occupiers (a common compromise position), the tenant would have been able to exercise it successfully.
+44 (0)115 976 6575
You may be interested in...
Utilising prime retail sites to improve the health of our nation
A new era of opportunity for high street regeneration?
Practical points from High Court ruling that Tesco has infringed Lidl’s IP rights in its famous yellow circle logo
Pitfalls for retailers to avoid when offering access to ‘buy now, pay later’ products
Browne Jacobson’s Manchester dealmakers advise Spatial Global on its acquisition of Heathrow based freight specialist Hollyport Logistics
Supreme court rules on retail tenant's service charge bill
Consumer duty part 3 - 'The drill-down' into the 'cross-cutting' rules
The UK's green agenda - the outcomes of COP27 and actions since COP26
Browne Jacobson’s retail lawyers advise Wilko on its strategic £48m sale and leaseback of Nottinghamshire distribution centre to DHL
National law firm Browne Jacobson has advised long standing retail client, Wilko on the sale and leaseback of its Nottinghamshire distribution centre in Worksop to logistics specialist DHL for £48m.
Suzanne Harlow joins Browne Jacobson as Non-Executive Director
Law firm Browne Jacobson is pleased to announce that Suzanne Harlow has been appointed Non-Executive Director of its Retail, Consumer & Logistics sector.
Is this the end for free returns?
Earlier in the year a number of fashion retailers, boldly announced the introduction of a charging fee for returning any product purchased via their online store. Yet, despite this commercial, and perhaps somewhat controversial decision, at least one major fashion giant that adopted this approach has recorded ‘historic highs’ in its September profits. Browne Jacobson partner, Cat Driscoll who heads up the firm’s commercial team in Manchester and is also head of its Fashion & Beauty sector discusses whether this change has put the average consumer off and whether the days of free returns are long gone.
AI generated designs on retail products
Consumer duty part 2 - 'The drill-down' into the 'cross-cutting' rules
Luxury brands and sustainability – The challenges and solutions
The Retained EU Law
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
Rent arrears post-Covid: What are the landlord’s options?
Since the beginning of the pandemic, landlords and tenants have experienced significant limitations in the way rent arrears could be pursued. We first saw the moratorium on the recovery of Covid related arrears, and more recently we’ve experienced the implementation of the Covid arrears arbitration scheme.
Browne Jacobson appoints its first Non-Executive to Chair to support its corporate sector strategy board
Press Release - Careers
Browne Jacobson strengthens its UK&I commercial practice with hire of new retail & consumer specialist partner
Browne Jacobson has bolstered its commercial practice in the UK with the appointment of commercial contracts and international trade specialist, Emma Roake, into its City-based London team.
Cameras in convenience stores: a potential hornet’s nest..?
Merger and Acquisition trends in the specialist lending market
RAAC planks and its impact on local authorities
Recent reports of flat roofs constructed using RAAC planks collapsing without warning prompted the SCOSS alert.
Court of Appeal overturns “fire and re-hire” injunction
The Court of Appeal overturned the “fire and re-hire” injunction, finding that there was nothing in the express contractual provisions preventing Tesco from giving the notice to terminate employment in the usual way.
80% hours for 100% pay? That’ll do nicely
As has been widely reported this week, some 3,000 UK workers are taking part in a six month trial to assess the viability of a four-day working week without any reduction in their normal pay.
The Omnibus Directive is almost here
Amongst the measures being introduced are new rules on online reviews, price reduction promotions, enhanced rights for free digital consumers, GDPR-style fines and information requirements on online markets.
Building Safety Bill – what’s coming and how will it affect you?
In anticipation of the adoption of the Building Safety Bill, our specialist compliance and regulatory team will give an overview of the measures proposed in the Bill.
Right to Work Checks: Changes from 6 April 2022
From 6 April 2022, right to work checks on all migrant or settled prospective employees must be online and checks on British or Irish nationals will be manual (free) or digital (charged for).
W (No.3) GP (Nominee A ) Ltd and another v J D Sports Fashion Plc (Nottingham County Court, 22 October 2021)
The County Court refuses the landlord’s request to include a turnover rent in a statutory lease renewal.
Employment Tribunals 2022-23 – What to Expect
The Presidents of the Employment Tribunals England and Wales and Scotland have issued a new road map for 2022-23, providing an update on the resourcing challenges faced by employment tribunals and the steps put in place to address these.
Government’s proposals for dealing with pandemic rent arrears finally reach the statute book
The Commercial Rent (Coronavirus) Act 2022 was finally passed yesterday (24 March) and comes into force immediately.
Browne Jacobson broadens its construction offering with appointment of nuclear and renewable energy specialist
Browne Jacobson has broadened its national construction and engineering offering with the appointment of construction partner Zoe Stollard into its Birmingham office.
Covid-19 rent arrears – the questions that remain
The Government appears set to announce plans on ‘living with Covid to restore freedom’. With the success of the retail and hospitality sector key to recovery, what protections will be on offer to tenants to deal with Covid-19 rent arrears?
Are whistleblowers entitled to keep their employer’s confidential documents?
In Nissan v Passi, the High Court recently considered the issue of an employee retaining confidential documents belonging to his former employer in the context of the employer’s application for an injunction seeking the return of such documents from the employee.
Levelling up white paper strategic briefing
The levelling up white paper sets out a set of 12 priority ‘missions’ to be pursued by national and local government in the years to come. With measures covering regeneration, communities, connectivity, education, R&D, employment, and health.
High Court injunction granted to prevent “fire and rehire”
The High Court has granted an injunction against Tesco preventing the dismissal and re-engagement (‘fire and rehire’) of employees in an attempt to remove a contractual entitlement to enhanced payment terms.
Macey v Pizza Express (Restaurants) Ltd  EWHC 2847 (Ch)
A landlord did not demonstrate the requisite intention required to oppose a statutory lease renewal underground (g).
Stonecrest Marble Ltd v Shepherds Bush Housing Association Ltd  EWHC 2621 (Ch)
Where a lease provides a comprehensive scheme of repair and insurance, the court will not imply terms to cover any gaps in that scheme.
Browne Jacobson advise Sephora on its acquisition of Feelunique
Browne Jacobson’s corporate finance lawyers have advised omnichannel prestige beauty retailer Sephora on its acquisition of Feelunique.
Browne Jacobson completes acquisition of UK stand-up paddleboard leader Red Paddle Co for the Myers Family Office
Our corporate finance team have advised the Myers Family Office, on its purchase of Vian Marketing, the holding company for leading stand-up paddleboard business, Tushingham Sails which is best known in the market for its Red Paddle Co brand.
What are the implications of the recent Tesco equal pay ruling?
Dealing with Covid Rent Arrears – an overview but no specifics
Following on from our recent article on the release of the updated Code of Practice for dealing with commercial rent arrears that have accrued throughout the pandemic, we continue to highlight what the overall principles seek to ensure - fairness and proportionality for both landlords and tenants across each step of the arbitration process.