Supreme Court confirms that a term requiring the landlord to repay rent for a period after a break date will not be implied into a lease.

The Supreme Court in M&S v BNP Paribas has firmly shut the door on tenants which have successfully operated break clauses and wish to claim back rent they have paid in respect of a period after the break date.

The Supreme Court has confirmed the Court of Appeal’s decision and given certainty that, without express wording to the contrary in the lease, a tenant’s claim for the apportioned rent for the remainder of the quarter is unlikely to succeed.

The Court considered in detail case law surrounding the implication of contractual terms, and concluded that, in view of the express terms of the lease and in the light of the law on implied terms on apportionment, no term should be implied into the lease.

A term will only be implied if it satisfies the test of business necessity or is so obvious that it goes without saying. Where the parties have spent time negotiating a “detailed commercial contract”, the Courts are more likely to steer away from implying additional terms.

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