Not Just Another English Decision On Break Clauses

A court will not rewrite a freely negotiated lease, even if the outcome appears unfair. In a recent court case involving Marks and Spencer, the tenant was not entitled to a refund of rent paid in advance where payment occurred shortly before the lease break option date. The lease was silent on the point. The case, from England’s highest court, emphasises the importance of clearly setting out your expectations in the lease.

The decision in the case Marks and Spencer Plc. v. BNP Paribas Securities Services Trust Company Ltd. ¹ is of significant interest to landlords and tenants in relation to the interpretation of commercial lease provisions. Generally, the lesson is to make terms explicit. As the March Hare said “you should say what you mean”.