Landlord’s trigger notice — Whether served too late — Lease providing specifically for earliest but not for latest date — Review date specified as “material date” for other rent review purposes — Tenant disputing validity of notice served after material date — Tenant’s contention upheld
The defendant tenant occupied offices in Tunbridge Wells, under a 35-year lease that commenced on 7 May 1975, paying an annual rent, last reviewed in 1990, of £377,900. By clause 4 of the lease, a landlord’s notice requiring the rent to be reviewed could 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 reviewed rent, if higher than the passing rent, became payable “as from the material date”, meaning “the end of the year of the said term during which such notice is given”.
In April 2001, the claimant landlord acquired the reversion on the lease. On the same day, it purported to serve a notice triggering a review as from 7 May 2000. The tenant disputed the validity of the notice, contending that any such notice had to be given no later than 6 May 2000, and that the passing rent accordingly remained payable until such time as an upward review was properly effected for the period commencing 7 May 2005. According to the tenant, the words “not at any other time” excluded any date falling before or after the 12 months preceding the material date. The landlord accepted that the clause laid down the earliest date upon which the notice could be given, and that a revised rent could not be claimed for any period before the material date. However, the landlord went on to argue that the notice was valid because no date had been specified in the lease as the last date upon which a notice could be served.
Held: The notice was invalid.
While the landlord’s interpretation accurately reflected what might be described as the literal meaning of the words in issue, the modern approach required that “we no longer confuse the meaning of words with the question of what meaning the use of the words was intended to convey”: see per Lord Hoffmann in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57 at p66. A more obvious choice of words could have been used to give effect to the intention advocated by the landlord. On their true construction, the words “but not at any other time” impliedly referred to a defined period, which had already been identified as the period within which any notice had to be given. Thus construed, those words did make time of the essence.
Kim Lewison QC and Jonathan Arkush (instructed by Cawdery Kaye Fireman & Taylor) appeared for the claimant; Jonathan Brock QC (instructed by Mace & Jones) appeared for the defendant.
Alan Cooklin, barrister
