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Author:: Tamsin Reader
In the case of Marks & Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another , the Court of Appeal has overturned a first instance decision. The tenant, M&S, had exercised a break clause ending its lease early. It sought a refund of parts of payment it had made in respect of rent, service charge, car parking and insurance charges, which related to a period after the break date. The issue of the repayment of the service charge had been settled during the High Court proceedings. When the matter came before the Court of Appeal, the tenant was only seeking repayment of rent and insurance charge and a car parking fee.
The tenants’ argument centred around the principle that a tenant should only pay under a lease for what he actually receives. However the Court of Appeal ruled that it was not appropriate to imply a term into the lease that entitled the tenant to a refund of the rent, car parking fee and insurance charges that it had paid in accordance with the express terms of the lease.
It seems that this decision has restored the view that in the absence of an express provision, a tenant should not be entitled to a refund of any rent paid that relates to the period after a break date.