As a property litigator, I like detail and I like tricky cases; it kind of comes with the territory.
So, being a fan of complicated break clauses, I was intrigued by the recent case of Levett-Dunn v NHS Property Services Ltd.
The facts of the case are relatively complex but this extract from the lease is of great relevance:
“Frederick Levett-Dunn, Simon Levett-Dunn, Howard Evans and Barnet Waddingham Trustees Ltd, all of 75 Tyburn Rd, Erdington, Birmingham B24 8NB (hereinafter called “the Landlord” which expression shall where the context so admits include the person or persons for the time being entitled to the reversion of the premises hereby demised immediately expectant on the term hereby granted)…”
Four break notices, one addressed to each of the landlords were delivered to the premises detailed above by recorded delivery, notwithstanding that by the time of service of the break notice, one of the four joint landlords had ceased to be a landlord (and the reversion now vested in the three remaining joint landlords). In addition the three remaining landlords were no longer connected with the premises at the stated address.
So was the notice validly served?
Section 196 of the Law of Property Act 1925 incorporated into the lease and the meaning of “last known” place of abode or business was carefully considered in determining if the notice had been validly served.
The fact that the landlords were described collectively as being “of” the stated address, meant that the landlords’ place of business for the purpose of receiving notices under the lease, unless and until the tenant became aware that it ceased to be their address. It was dismissed that the tenant had not carried out sufficient due diligence to determine if the address was still a business abode of the landlords. If the tenant had acquired actual knowledge that it was an address whereby the landlords could no longer be reached (if it had been destroyed for instance) then questions may be raised but otherwise, no question arises as to whether it is the “last known” place of abode or business. On that the basis, the notices were validly served and the lease successfully terminated.
A good and sensible result for tenants but, as is always the case, the wording of break clauses must be carefully considered when attempting to terminate a lease (along with the methods of service and any other prescriptive clauses). Tenants must always be aware of potential pitfalls.
