Time was of the essence for the purposes of a landlord’s notice to increase a tenant’s interim service charge contribution.
Time was of the essence for the purposes of a landlord’s notice to increase a tenant’s interim service charge contribution.
The tenant (B) held a 125 year lease of a flat. Under the lease, B was obliged to pay an interim service charge of £360 per annum by equal half yearly payments on 1 April and 1 October in each year. The lease went on to provide that this sum could be revised by the landlord:
“to such amount as it shall deem necessary in the light of expenditure reasonably anticipated for that year notice of such revision and adjustment to be served on the Lessee not less than one month prior to the commencement of that financial year.”
The financial year started on 1 April. The landlord (K) sent a letter to B in August 2019 requesting payment of half yearly instalments in excess of £180 per half year for periods running from 1 April 2018, 1 October 2018, and 1 April 2019.
Was time of the essence in relation to the letter sent by K to B revising the amount of the interim service charge payable by B (meaning that K was out of time to increase the amount payable by B)?
The presumption against time being of the essence was displaced in this case. The language clearly stipulated that notice was to be given “not less than one month” before the start of a financial year, the notice was in respect of “expenditure reasonably anticipated” for the year ahead and once notice was given, the revised sum would be payable half yearly during the financial year. It was therefore likely that the parties intended the advance notice requirement to be strictly adhered to.
Professional Development Lawyer
david.harris@brownejacobson.com
+44 (0)115 934 2019