|A recent case
highlights yet another trap which tenants can encounter when trying
to exercise a break clause in their lease. As we discussed in
the Spring edition of Informer (http://www.ffw.com/publications/all/articles/in--1--tenants-break-options.aspx),
this is a very tricky area of practice.
The latest case, Gemini Press Ltd v Cheryl
Lindsay Parsons, hinged on whether a break right was personal
to a particular tenant, i.e., whether the break right was lost once
the lease was assigned. In 2002, a lease was
assigned to a company called Ashdown Company UK Limited. At the
same time, a deed was entered into, inserting a break clause into
the lease. This allowed Ashdown to break the lease on 6
months' notice. The deed used the term "Assignee" throughout, which
was defined as including "their respective successors in title".
However, the break clause specifically named Ashdown alone,
and made no reference to "Assignee".
In 2005, Ashdown assigned the lease to Gemini
Press Limited . Gemini then attempted to exercise the break
right in 2009. However, the Landlord argued that Gemini was not
entitled to break the lease, because that right was personal to
The county court judge held that the break
right applied only to Ashdown, and not to Gemini as Ashdown's
Gemini appealed and lost. Gemini argued that a word like
"only" was needed to make it clear that the right to break was
personal and not capable of assignment. As the break clause
in this lease did not use the word "only", or anything similar, the
right to break was capable of being assigned to Gemini.