In light of the case Cowthorpe Road 1-1A Freehold Ltd v Wahedally (2017) where the tenant served a notice via email, email is not an accepted method of service.
An effective break notice must have/be:
1. Correct address for service (the landlord’s registered office);
2. Served on time ( usually 6 months before the break date as specified in the lease);
3. Served in the correct manner (by recorded delivery);
4. Used the correct form of notice required by the lease (your solicitor will be able to advise in this regard)
Errors to avoid when serving the notice:
1. Ensure all names of the parties are correct and there are no missing words or spelling errors.
2. Check that the break date in the notice is correct (this will be in specified in the lease).
Both parties could argue their point but the position is uncertain. The Courts have in the past concluded that minor errors do not affect the validity of a notice as the landlord should still recognise a letter such as this, despite minor errors, as a break notice. At the same time, the recent Friends Life decision reinforces the need for entirely accurate break notices.
With economic recovery still slow, there is obviously potential for a party receiving a notice to exploit any errors within it. From a landlord’s perspective, that might mean securing a profitable tenant for perhaps another 5 or 10 years until they can next exercise the right to serve a break notice or it may give a landlord the upper hand in negotiating a new term.
The important point to note however is that the decision is the landlord’s; by virtue of any errors in the notice served by the tenant, the landlord has the leverage to take whichever option makes the most commercial sense to him, not the tenant. Of course the tenant may challenge the landlord’s decision but that would involve expensive and time consuming litigation which the tenant never envisaged and this will only strengthen the landlord’s hand. For advice on break notices, and commercial law generally, please click here to contact us.
Natalie Nolan, Trainee Solicitor
Waldrons Solicitors
