Good breaking news for tenants at long last

Following a string of unfortunate decisions for tenants, Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and BNP Paribas Securities Services Trust Company Ltd [2013] EWHC 1279 (Ch) is the first case where a tenant has succeeded in obtaining reimbursement of overpaid rent relating to the period after the break date.

The general rule is that tenants exercising break clauses before the end of the contractual term are not automatically entitled to a refund of moneys paid in advance but relating to a period after the break date.

The lease must contain an express clause for the landlord to be required to refund the overpayment. However, in this case, the court found that the circumstances required there to be an implied term in favour of such repayment in order to give business efficacy to the lease, i.e. in order for the lease to make good business sense…

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