Clause in lease allowing for rent review at five-year intervals — Whether appellant landlord permitted to instigate rent review at any time during that period — Appeal dismissed
The respondent was a business tenant of the appellant landlord, under a 35-year lease dated 7 May 1975. The tenant had acquired the residue of the lease in 1993, and the landlord had obtained the freehold reversion in April 2001. Clause 4 of the lease provided that notice of a rent review “may be given at any time not more than twelve months before the expiration of each or any of the following years of the said term that is to say every fifth year thereof but not at any other time&”.
The landlord gave notice of a rent review in April 2001. The tenant maintained that the notice had to be given no later than 6 May 2000. The parties applied to the court to determine whether the rent review notice had to be given by a set date, and, if so, by which date.
The judge found for the tenant, holding that the notice had to be given at any time during, but not after, the 12 months of every fifth year. The landlord appealed, contending that clause 4 did not impose an end date.
Held: The appeal was dismissed.
1. On the ordinary and natural meaning of the language used, the word “before” served a dual temporal function. First, it governed the calculation of the relevant period of 12 months, so that the notice should have been given not more than 12 months before the expiry of the relevant five-year period. Second, it governed the period within which the notice was to be given, that is, the period before the expiry of the relevant fifth year.
2. The words “not more than twelve months before the expiration of” stipulated both the beginning of the time during which the notice must be given and the end. The words “but not at any other time” made time of the essence, which meant that any notice given outside the stipulated period would be invalid.
3. In the present case, the review notice should have been given between 7 May 1999 and 6 May 2000.
Kim Lewison QC (instructed by Cawdery Kaye Fireman & Taylor) appeared for the appellant; Jonathan Brock QC (instructed by Sequence (UK) Ltd) appeared for the respondent.
Vivienne Lane, barrister
