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Break Clauses

FROM £85.50

A comprehensive guide that explains everything a property practitioner needs to know in respect of break clauses.

Break Clauses is a comprehensive guide that explains everything a property practitioner needs to know in respect of break clauses including:

  • Comparisons between break clauses and other methods of terminating leases
  • How to interpret break clauses and break notices
  • How break clauses relate to other clauses within the lease, e.g. rent review clauses
  • The effect of exercising a break notice on the respective obligations of landlords / tenants / sub-tenants
  • The consequences of there being conditions precedent attached to the exercise of a break clause
  • The formalities and the possible registration requirements of break clauses
  • The procedure for the service of a break notice and the consequences of failing to comply with that procedure
  • The interrelationship between break clauses and the security of tenure procedures under the Landlord and Tenant Act 1954
  • Issues of professional liability in the context of break clauses
  • Redevelopment break clauses
  • Guidance on break clauses in residential and agricultural tenancies
This new edition has been comprehensively updated and expanded to include coverage of:

  • Latest important decisions such as M&S v BNP Paribas [2015], Siemens v Friends Life (CA) [2014],  Avocet [2012], PCE Investors [2012], Gemini Press [2012], Fitzhugh v Fitzhugh [2012], HFI Farnbrough v Park Garage [2012], Canonical v TST Millbank [2012], and Quirkco v Asprey [2012].
  • Further analysis of debate and opinion on topical issues such as the recoverability of 'overpaid' rent following the termination of a lease.
  • Extended selection of precedents.
  • The Nature of a Break Clause in a Lease
  • Formalities and Registration
  • Assignment
  • Who May Exercise the Break Clause
  • The Form & Content of the Break Notice
  • Conditions in a Break Clause
  • Particular Conditions in a Tenant's Break Clause
  • The Recovery of 'Overpaid' Rent
  • Redevelopment Break Clauses
  • The Time for Service of the Break Notice
  • The Method of Service of the Break Notice
  • On Whom the Break Notice Should be Served
  • Invalid Break Notices: Estoppel, Waiver, Withdrawal
  • The Effect of Exercising a Break Clause
  • Professional Liability
  • Business Tenancies
  • Residential Tenancies
  • Agricultural Tenancies
  • Drafting Break Clauses 
  • Practical Tips on Exercising a Break Clause
  • Appendices
It is a commonplace with a textbook that the progeny is larger than the forebear. This book is an extreme example of that tendency. Although there have been a large number of cases concerned with aspects of break clauses in the last few years, the blame for growth lies on the shoulders of the authors, not the judges. Further thoughts, plus readers' suggestions, have added topics, and even some new chapters. Really, the book has undergone a substantial re-write.

Case-law since the first edition has tended to emphasise the importance of strict compliance with the conditions in a break clause, and the content of the break notice. The many cases dealing with the former are discussed in Chapters 9 and 10. Prominent amongst the cases emphasising the importance of the careful drafting of a break notice is the Court of Appeal decision in Siemens Hearing Instruments Ltd v Friends Life Ltd [2014] 2 P&CR 5.

One topic which now justifies its own chapter is the recovery of 'overpaid' rent and other sums. The recent decision of the Supreme Cort (Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Ltd [2015] 3 WLR 1843), considering the implication of a term as to the repayment of rent, is discussed in some detail in Chapter 11.

We are exceedingly grateful to Lord Neuberger for providing a foreword. He features in many of the cases, both as a judge and an advocate.

Finally, the law is stated as at 25 February 2016.


Selborne Chambers
10 Essex Street

It is striking, and to the uninitiated it may be surprising, that an apparently relatively niche topic such as break clauses in leases can provide enough in the way of legal problems and issues to justify a book running over 300 pages and over 500 reported cases. Many non-lawyers may wonder whether this is a tribute to the ingenuity of lawyers or the ineptitude of those involved in drafting and operating the clauses. However, as any reader of this excellent book will quickly realise, break clauses have thrown up many practical and legal problems, which fully justify the full and careful treatment which this book gives the topic.

It is in fact unsurprising that break clauses in leases have given rise to so much difficulty. Experience shows that there is something about the landlord and tenant relationship generally that has a tendency to produce uncertainties, conflicts and disputes, which require legal advice and often end up in court, in arbitration or in mediation. I suspect that it is due partly to the human condition (which the whole panoply of the law inevitably reflects), partly because of the difficult relationship between property law and contract law, which inevitably arises in the field of leases.

And break clauses in particular have specific features which notoriously produce difficult and contentious points of law - contractual interpretation, time limits, form and service notices, pre-conditions, and interrelationship between contract law and statute law. On top of that, the exercise of a break clause is inherently quite likely to produce conflict. While it will, of course sometimes suit both landlord and tenant if the lease determines early, in many cases the very market forces which impel one party to operate the break clause will cause the other party to want the lease to continue. Economic influences will therefore often encourage the recipient of a break notice to try and find grounds for invalidating it - so the break notice is served and the seeds of conflict are sown.

It is not only the existence of over 500 cases relevant to the topic which is worthy of comment: what is also striking from a quick perusal of those 500 cases is how many of them were dedicated in the past thirty years. Indeed, there have been sufficient new judicial decisions over the past four years to justify a second edition of this book since the publication of the first edition in late 2011. The large number of recent cases on the topic not only illustrates how productive of litigation break clauses still are; it also emphasises how many difficult problems can frequently arise from break clauses, and therefore how essential it is to have an up-to-date book on the topic. Legal academics and students; developers, owners, occupiers and managers of property; and lawyers and others who advise and represent those people all need an authoritative and comprehensive book on break clauses. Mark Warwick QC and Nicholas Trompeter deserve gratitude and praise for having taken time out of their busy practices to produce a second edition of this book.

The book is well and clearly structured, so that any reader can easily identify and find the passage or passages which deal with the problem in hand. The authors have succeeded in producing a book on break clauses which is both scholarly and practical, and both full and concise. The authors express themselves clearly and readably, and, quite rightly, they have an eye both on the academic reader and on the practitioner, and they cover all legal aspects of what one might call the full life of a break clause - from what a break clause actually is to the effect of exercising a break clause. But, very sensibly, the authors have not stopped there. Apart from referring to break clauses in different types of lease (and the consequential statutory impact) they have included chapters on drafting break clauses, exercising break clauses and professional negligence in connection with break clauses.

It is interesting and gratifying to note that, as with all the best and full legal treatments of a specific topic, reading this book shines a light on much wider areas of law than one might at first sight expect. Insolvency, assignment, estoppel, mistake, side agreements, unjust enrichment are just some of the areas which have come into play in cases involving break clause cases, and all those areas are relevantly covered in this book.

From a selfish perspective, it has been interesting to remind myself of cases which I argued when at the Bar or subsequently decided when a judge - from Adams v Green in 1978 (frighteningly, over 35 years ago) to Marks and Spencer Plc v BNP Paribas Securities at the end of last year. The latter case was decided just in time for the authors to cover it in this book. It illustrates rather well three of the points made above. First, it shows that new points keep on coming in relation to break clauses; secondly, it shows that break clauses often produce different points; thirdly, it shows how break clause cases can involve wider points of law - in that case the law of implied terms.

In summary, this is an excellent and much needed book which treats a difficult and significant topic very well both academically and practically.

David Neuberger
UK Supreme Court
March 2016

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