Old-fashioned rent review provision — Landlord entitled to apply for appointment of surveyor in default of agreement — Tenant serving notice purporting to make time of essence — Whether such notice effective in the absence of a contractual time limit — Landlord’s objection to notice upheld
A 42-year lease, granted in 1968, of premises in Barking, Essex, provided for an upwards-only rent review at intervals of seven years. The revised rent was to be such rent as might be agreed between the parties on or before the quarter day immediately preceding the end of each seven-year period, and, in default of such agreement, as might be assessed by a surveyor to be appointed on the application of the landlord to the president of the Royal Institution of Chartered Surveyors. No form of trigger notice was prescribed, nor was any time limit imposed upon the landlord’s power to make the appropriate application.
In September 2000, the claimant tenant, writing with reference to the (non-agreed) rent payable from September 1996, purported to make time of the essence by requiring the landlord to make its application within a stated time. The landlord did not comply. The tenant sought summary judgment, claiming that the rent for the relevant period could no longer be reviewed. The landlord pointed to the absence of any time limit in the lease, and contended that the tenant’s purported notice lacked effect. That argument was accepted by the Chancery master, and the tenant appealed.
Held: The appeal was dismissed.
Applying the words of Oliver LJ in London & Manchester Assurance Co Ltd v GA Dunn & Co [1983] 1 EGLR 111, it was meaningless to speak of delay where there was no contractual time limit. That approach was supported by the decision in Bickenhall Engineering Co Ltd v Grandmet Restaurants Ltd [1995] 1 EGLR 110. The case of Factory Holdings Group Ltd v Leboff International Ltd [1987] 1 EGLR 135 was distinguishable, as the relevant clause did contain a time limit. No analogy could be drawn with the time limits implied into contracts for the sale of land.
Christopher Stoner (instructed by Denton Wilde Sapte) appeared for the claimant; Jonathan Seitler (instructed by Memery Crystal) appeared for the defendant.
Alan Cooklin, barrister
