Acceptance of tenant break notices

Either party to a lease (and their agents) must be careful when dealing with notices to terminate. MW Trustees Ltd and others v Telular Corporation [2011]EWHC 104 demonstrates some of the pitfalls. In this case, the tenant was required to serve six months’ written notice on the landlord by hand or special delivery. In fact, the tenant addressed and sent the notice to the previous landlord, and then, after being made aware of the mistake, emailed the new landlord attaching the original notice. This meant that the notice was invalid for being in the wrong form and for being served in the wrong manner. The landlord’s agent (who had been forwarded the emailed notice by the landlord) then responded to the tenant confirming that the break notice had been accepted.

The court ruled that despite the notice being addressed to the wrong person, a reasonable recipient would not have been misled about the tenant’s intention to terminate the lease.  As the tenant had acted in reliance on the agent’s confirmation (which amounted to a waiver of the landlord’s right to challenge the break notice), the court ruled that the landlord was estopped from challenging the validity of the form or manner of service of the notice.

This case shows that tenants must be careful to address the notice to the correct party and serve it in the correct manner as prescribed by the lease, as tenants will not always be able to rely on a waiver by the landlord.  Conversely, in response, landlords should be aware that if they wish to challenge the validity of the notice, any response should only acknowledge receipt and not confirm acceptance of the break.

 

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Jury O'Shea