0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

break rights and overpayments – case law update

14 May 2014

Do you remember the Marks and Spencer Plc v BNP Paribas case last year? M&S had a break right which was conditional on there being no arrears at the break date (as well as paying a financial penalty). Having paid the full quarter’s rents to exercise the break right, the judge implied a term that the landlord must reimburse the tenant for all advance payments (about £1.1m in total).

Perhaps not surprisingly, this decision has today been overturned by the Court of Appeal. No such term is to be implied and the loss must lie where it falls. It is therefore crucial when acting for a tenant with a break clause to provide expressly in the heads of terms and lease that, following the exercise of the break clause, the landlord must reimburse the tenant for all overpayments. Draft with care!

related opinions

A landlord’s service charge certificate was conclusive as to the sums payable by a tenant under a lease

The Court of Appeal has ruled that the wording of a service charge clause precluded a tenant from challenging the sums claimed by a landlord.

View blog

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.

View blog

Retail ATMs and business rates: clarity at last!

Judgement has been handed down for the seminal case of Cardtronics UK Ltd and others (Respondents) v Sykes and others (Valuation Officers) (Appellants) [2020] UKSC 21.

View blog

More protection required for retailer workers as violence is on the rise, according to latest statistics

Following an MP debate on 5 November 2019, the government is due to release long-awaited guidance as to how it intends to protect workers in the retail industry against violence, harassment and abuse.

View blog

mailing list sign up



Select which mailings you would like to receive from us.

Sign up