Whether time limit imposed – Whether time of essence
Depending upon which way the market has moved since the rent was last fixed, it may pay L or T (the objector) to oppose a rent review on the ground that the other side has missed the boat. The objector will have to show: (a) that the relevant time limit was laid down by the lease; and (b) that time was, or was made to be, of the essence.
As regards (a), the issue is usually one of construing loose wording. The objector may be assisted by the somewhat less pedantic approach to construction in general advocated by Lord Hoffmann in the celebrated Mannai case, which was applied by Rimer J in First Property Growth Partnership LP v Royal & Sun Alliance Property Services Ltd [2002] PLSCS 64.
If the lease is silent on the matter, the objector will have to show that the alleged time limit must be implied in order to give business efficacy to the lease – a daunting task (see Iceland Foods plc v Dangoor [2002] EWHC 107 (Ch); [2002] 21 EG 146) but not an impossible one (see the objector’s successful appeal in Barclays Bank plc v Savile Estates Ltd [2002] EWCA Civ 589; [2002] 24 EG 152, as reviewed by Sandi Murdoch in
As regards (b), the objector is faced with the well-known rule that time is not to be taken to be of the essence unless the lease indicates strongly to the contrary. In First Property, the objector successfully relied upon the words “but not at any other time”. That case should be contrasted with the decision of Mr Peter Leaver QC in McDonalds Property Co Ltd v HSBC Bank plc [2001] PLSCS 103, declaring that no such contrary indication could be found in a requirement that the expert’s valuation had to be given not less than 14 days prior to the relevant review date.
Related items:
Whether time limit imposed – Whether time of essence
Depending upon which way the market has moved since the rent was last fixed, it may pay L or T (the objector) to oppose a rent review on the ground that the other side has missed the boat. The objector will have to show: (a) that the relevant time limit was laid down by the lease; and (b) that time was, or was made to be, of the essence.
As regards (a), the issue is usually one of construing loose wording. The objector may be assisted by the somewhat less pedantic approach to construction in general advocated by Lord Hoffmann in the celebrated Mannai case, which was applied by Rimer J in First Property Growth Partnership LP v Royal & Sun Alliance Property Services Ltd [2002] PLSCS 64.
If the lease is silent on the matter, the objector will have to show that the alleged time limit must be implied in order to give business efficacy to the lease – a daunting task (see Iceland Foods plc v Dangoor [2002] EWHC 107 (Ch); [2002] 21 EG 146) but not an impossible one (see the objector’s successful appeal in Barclays Bank plc v Savile Estates Ltd [2002] EWCA Civ 589; [2002] 24 EG 152, as reviewed by Sandi Murdoch in A timely reminder Estates Gazette 29 June 2002, p136).
As regards (b), the objector is faced with the well-known rule that time is not to be taken to be of the essence unless the lease indicates strongly to the contrary. In First Property, the objector successfully relied upon the words “but not at any other time”. That case should be contrasted with the decision of Mr Peter Leaver QC in McDonalds Property Co Ltd v HSBC Bank plc [2001] PLSCS 103, declaring that no such contrary indication could be found in a requirement that the expert’s valuation had to be given not less than 14 days prior to the relevant review date.
Related items:
PP 2001/49
PP 2002/212
