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Useful warning for commercial tenants from the court

23rd November 2020 by Mark Timberlake

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The Court of Appeal has given a salutary warning to tenants of commercial premises to be careful what you sign when they overruled the High Court in the case of Sara and Hossein Asset Holdings Ltd v Blacks Outdoor Retail (2020)

The lease said that the tenant was to pay a “fair and reasonable proportion” of the total service cost of the building. The landlord was entitled to this upon giving a certificate of the amount payable for each service charge year which was “conclusive in the absence of manifest or mathematical error or fraud“.

The Court of Appeal said that the wording used meant that the amount demanded in the certificate could not be challenged as it was not claimed that there was manifest or mathematical error or fraud. It said that the judge in the High Court was wrong to be influenced by the fact that this made the landlord “judge in its own cause”.

The Court of Appeal commented that its role was to interpret what the parties had agreed and “not what the court thinks they should have agreed’’!

As the Court of Appeal said, tenants need to be well advised to consider very carefully before agreeing a lease with such terms.

Tenants of residential premises who pay service charges are in the fortunate position of having statutory protection so the decision would probably have been very different for them.

Laceys is well placed to advise both landlords and tenants on the granting of a lease and if there is a dispute later on. For further advice contact m.timberlake@laceyssolicitors.co.uk, head of our Commercial Landlord and Tenant team

Mark Timberlake

Managing Partner — Dispute Resolution

Direct dial: 01202 755200

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  • “The advice Mark gave was very good value for money and the combination of strictly accurate legal advice and common sense were exactly what I needed.”

    Nick Stocks. Director, Spitfire Court Properties Ltd.

  • “Mark Timberlake is an exceptional solicitor. He has a huge depth of knowledge in his speciality and looks after his clients in a very kind and patient manner. Mark is unfailingly courteous and always a pleasure to deal with. I am always confident in any matter that Mark has dealt with.”

    Jane Balmforth

  • “We have had many years of top class professional advice and assistance in many respects of our property ownership. However great our worries initially, matters have been dealt with in a most professional manner and to our satisfaction.”

    Michael Filer, Bourne Court Consortium

Mark qualified as a solicitor in 1989 and since then has specialised in property and landlord and tenant disputes, possession and debt recovery in relation to both commercial and residential property. He has extensive experience in relation to issues involving blocks of flats including representation in the Property Chamber and the courts. He has also dealt with many commercial disputes, professional negligence and insolvency claims.

He has frequently given talks on the law as it affects managing agents through the Association of Residential Managing Agents and other groups.

He has been recommended for many years by the Legal 500 Guide to the Legal profession which has said that Mark ‘is very highly rated by clients’, ‘explains complex issues in understandable terms’ and ‘is excellent in really difficult situations’. He is a committee member of the Bournemouth Law Society and a governor of Dumpton School.

Mark is married with 2 teenage children and at weekends can often be found on his boat which he sails competitively.

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