Rent and machinery of rent review - overviewReserving rent

The amount of rent must be ‘certain’. This does not mean that the lease must state the actual figures for the whole of the term. However, there must be a mechanism (usually a rent review clause) allowing the rent throughout the term to be ascertained with certainty.

No particular form of words is required to reserve rent, although the formula ‘yielding and paying during the term’ is widely used.

Although in itself a strong indicator that the parties intended to create a tenancy, rent is not not required for a tenancy to exist. If the other ‘hallmarks’ identified in Street v Mountford [1985] 2 ALL ER 289 are present (ie exclusive possession of defined premises for a term), then a tenancy can exist even if no rent is reserved or payable.

Commercial rents are usually paid in advance by equal instalments on the quarter days (25 December, 25 March, 24 June and 29 September) or on other dates specified as rent payment days. In the absence of an express agreement that rents are payable in advance, it will be payable in arrears.

Where rent is payable quarterly in advance, the whole instalment is payable on the quarter day (eg, the instalment due on 25 December is the full sum to cover 25 December - - 24 March, inclusive). This point is particularly significant where a tenant seeks to operate a break clause with a termination date that falls between quarter days. If the break is conditional on payment of all rents, and it is not clear on the face of the lease that the final instalment is to be a sum apportioned up to the break date, then the tenant must have paid the full instalment for the quarter in which the break date occurs.

Deductions from rent

Where property is let by a non-UK resident landlord, the UK letting agent, or the tenant where there is no such agent, must deduct basic rate tax from the property income (net of allowable expenses paid by the agent or tenant and net of VAT on the rent where it has been charged). The withheld tax must be paid to the Revenue within 30 days after the end of each calendar quarter. The agent or tenant must give the non-resident landlord an annual certificate showing the tax deducted. The landlord is required to pay any excess of tax due over the tax deducted at source (or claim a refund) under the self-assessment provisions.

Alternatively, a landlord may apply to receive his rental income in full, under the non-resident landlord scheme. The landlord must undertake to complete tax returns if required and pay any tax due on time. Any claim by a non-resident landlord to receive rent without deduction must be carefully checked.

Set-off

The tenant’s right to set-off rent against any claim it has against the landlord (eg for disrepair) can be excluded only by clear words. Use of the words ‘without set off’ excludes equitable as well as legal set-off.

Rent Review

‘A rent review clause is designed to deal with a particular commercial problem, namely that of the tenant who wants security of tenure for a lengthy term, and the landlord who, in times of inflation or a rapidly changing property market, does not want to commit himself to a fixed rent for the whole of that term.’ – (Hoffmann J in MFI Properties V BICC Group Pension Trust [1986] 1 EGLR 115).

Methods of rent review include:

The most common approach is for the rent to be reviewed by reference to the market rent for comparable properties at the review date. Market rent reviews take place at three or five year intervals. They require the parties (or the valuer appointed to determine the rent if the parties cannot agree) to assume a new lease of the property on the relevant review date by a willing landlord to a willing tenant. The starting point for valuation will be the actual property and the terms of the existing lease, but the valuer will be required to make various assumptions (for example,eg that the property is in good repair) and to disregard some matters (such as improvements made by the tenant). For commercial leases the process is entirely contractual, and so a significant body of case law has built up to explain and regulate the operation of rent review clauses. Key issues include:

Machinery of Rent Review

Many older review clauses (which may well be carried into leases renewed under the Landlord and Tenant Act 1954) require the landlord to ‘trigger’ the review by serving a notice proposing the new rent. The tenant must serve a counter-notice if the landlord’s proposed figure is not agreed. Time is not generally ‘of the essence’ for rent review clauses, but that presumption is rebutted if the clause not only requires the tenant to serve a counter-notice, but specifies that the new rent will be the landlord’s figure if the tenant does not respond in time. If the procedure of ‘machinery’ provided by the lease fails or becomes unworkable, then the court may impose an alternative procedure.

Code for Commercial Leases – - 2007

The Code for Commercial lLeases (the Code) remains voluntary but recommends a move away from upwards only rent reviews. Instead, the Code requires landlords to keep up to date valuations of its properties for the purposes of rent review. It is also recommended that landlords consider requests from tenants for upwards/downwards rent reviews or other alternatives as well as the ability for either the landlord or the tenant to initiate a rent review. The landlord is expected to provide reasons for rejecting alternatives to the standard upwards only rent review and, unless clearly set out in the heads of terms, the basis of rent review will be the open market rent.