Invalidity of Break Notice: Sackville Property Select II (GP) No.1 Ltd & Anor v Robertson Taylor Insurance Brokers Ltd & Anor  EWHC 122 (Ch)
Tuesday 30 January 2018
Mark Wonnacott QC appeared for the successful landlord in Sackville Property Select II (GP) No.1 Ltd & Anor v Robertson Taylor Insurance Brokers Ltd & Anor  EWHC 122 (Ch). The case concerned the validity of a tenant’s break notice, which was served by an equitable assignee of the term during the registration gap.
The first question that the Court had to decide was: by whom, in the circumstances, should the break notice have been given? It was held that notice ought to have been given by the former tenant. The equitable assignee of the term was not ‘the Tenant’ as defined in the lease, and so was not the correct party to give notice.
The next question was whether in law the break notice was given by or on behalf of the former tenant. The notice was served by EC3 Legal, expressly on behalf of the equitable assignee. The Defendants argued, however, that the former tenant was an unidentified principal of EC3 Legal or an undisclosed principal of the equitable assignee. The Court rejected these arguments on the basis that the Defendants had not shown that the equitable assignee or its agents had intended the notice to be given on behalf of the former tenant.
Even if the Court was wrong on this point, the notice was not valid unless a reasonable person in the position of the landlord would understand that when it stated the name of the equitable assignee, it in fact meant to state the name of the former tenant. The Court found that the reasonable recipient of the notice would have been in little doubt that the notice was given on behalf of the equitable assignee rather than the former tenant. Accordingly, the Defendants could not establish that the break notice was served on behalf of the former tenant.
The Court thus held that the break notice was invalid.