The landlord resisted the exercise of a break clause saying that the entire premises had not been vacated. The difference was as to whether mere vacation was enough, or whether the tenant had to do some further positive act. The tenant had left assorted security fixtures and maintained security guards.
Held: The tenant had done all that was necessary to make clear his intention to vacate the premises. What was left did nothing to prevent the landlord retaking occupation.
The claimant took a commercial lease from the defendant’s predecessors. It requested a declaration that it had validly exercised a break clause. The freeholder said the lease continued since the tenant had not given full possession, not having carried out any overt act such as returning keys.
Held: The lease had been broken. The defendant’s position was artificial. The fact that the claimant had maintained security on the premises was not a denial to the landlord of possession. In the absence of any explicit form being specified, the court must look objectively at events and decide whether the person asserting termination had manifested its intention clearly, and whether the landlord could retake possession without difficulty or objection. The tenant’s notice complied with the lease and it had done everything necessary.
Robert Hildyard QC said: ‘The fact of retention of keys (or the failure to return them) may be significant but, equally, it may not be. All it may signify is . . an oversight or a desire to protect the premises both for the benefit of the [landlord] and in case the [tenant] might be found still to be liable, without in any way signifying any assertion of rights in respect of the property or being inconsistent with an effective termination of such rights.’
Judges:
Mr Robert Hildyard QC
Citations:
[2004] 17 EG 128, Gazette 22-Apr-2004, [2004] 2 EGLR 128
Jurisdiction:
England and Wales
Citing:
Cited – Cannan v Hartley 1850
. .
Cited – Gray v Bompas 1862
. .
Cited – Oastler v Henderson 1877
The tenancy was for seven years. Shortly after its creation, the tenant left the keys with the agent and asked him to dispose of it or make the best bargain for surrender he could, and left for America. A tenant not being found, the agent returned . .
Cited – Relvok Properties Ltd v Dixon CA 1972
A lease was assigned to a Mr Krokidis who then departed. The landlords instructed Estate Agents to change the locks. The defendants said that that amounted to a surrender of the lease.
Held: They were wrong: ‘In my judgment Judge Irving . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited by:
Disagreed with – Jones v London Borough of Merton CA 16-Jun-2008
The court was asked ‘If a former secure tenant of a dwelling-house who has become a ‘tolerated trespasser’ in it decides to cease to occupy it, does his liability to pay mesne profits to his former landlord in respect of the dwelling-house cease . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 30 April 2022; Ref: scu.200443
