Wed, 12 Nov 2014
Richard Adkinson, barrister at No5 Chambers, recently gave a talk titled ‘Commercial Leases: Break Clauses' at the Property Seminar held in Birmingham on 7th November.
1. This paper has really only one conclusion: As Lewison LJ said in Siemens Hearing Instruments v Friends Life Ltd  EWCA Civ 382 at :
“66. For these reasons I would allow the appeal. The clear moral is: if you want to avoid expensive litigation, and the possible loss of a valuable right to break, you must pay close attention to all the requirements of the clause, including the formal requirements, and follow them precisely.”
2. The term “commercial lease” is not a term of art. A commercial lease is a lease, just like any other. The factor that distinguishes it from other types of lease (i.e. residential) is simply that the parties to it (or at the very least the tenant) are commercial entities.
3. Notwithstanding the fact that a commercial lease is just a lease, the special characteristics of the tenant (if not the landlord) means that different factors often dictate the behaviour of the parties and the nature of the terms that they might want to see in a lease agreement to which they intend to become a party. Further, the legislation that governs commercial leases is, as is well known, entirely different to that which governs the residential letting market.
You can download the notes below.