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Hot date!


United Kingdom

Hot date!

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The press has been full of articles about the Theresa May/Abu Qatada dispute relating to the time limit for Abu Qatada to lodge an appeal against his extradition.  Did it expire at midnight on Monday (the Home Office view) or midnight on Tuesday (Abu Qatada's lawyer's view)?  

In the real estate world (as in appeals against extraditions), dates and notice periods are important.  Some of the potential date traps which are regularly encountered are simply due to uncertainty as to the commencement date of a lease.  If it is expressed as being "10 years from 1 May 2012", it will start on 2 May 2012 and therefore expire on 1 May 2022.  However, if the term is expressed as "10 years commencing on 1 May 2012", the term will start on 1 May 2012 and end on 30 April 2022.  This can be important in practice, for example:

  • When a rent review date is linked to an anniversary date, such as the "fifth anniversary of the Term Commencement Date".   It may be crucial that the date is ascertained correctly.
  • When an exact amount of time must be given for exercising a break clause, such as "by giving six months' notice expiring on the fifth anniversary of the commencement of the lease".  Again, it is critical that the correct start date of the lease is ascertained.

As usual, prevention is better than cure.  It is clearer to specify exact dates, such as a break clause being exercisable "on 1 May", subject to the tenant giving "not less than six months' prior notice to the landlord".  This avoids lengthy disputes about when a notice has to be served and, once served, whether it is valid.  However, if you have to work with the terms of an existing (unsatisfactorily worded) lease, then do take advice to ensure that good notice is given.  In situations where there are genuinely two (or more) interpretations (and those situations do exist), then it may be necessary to serve more than notice (each without prejudice to the validity of the other(s)).

In those circumstances, please do get in touch.

Antony Phillips is a partner in the Property Litigation Group at Field Fisher Waterhouse LLP