Construction of notice exercising break right

Trafford MBC v Total Fitness (UK) Ltd ([2002] EWCA Civ 1513, CA (Eng)) concerned a six year lease. L had the right to bring it to an end at any time by giving two weeks’ notice. L purported to exercise this right on 8 October 2001 by giving 17 days’ notice. The notice confirmed ‘for the avoidance of all doubt’ that it would take back possession at the end of 24th October 2001. T contended that the notice was fatally flawed: it gave two inconsistent expiry dates and T could not know which was intended (T relied on the ‘rule’ in Lester v Garland to the effect that the date of giving the notice is to be excluded from the expiry period so that it was not clear whether the notice was intended to take effect on the 24th or the 25th October).

T failed. It was open to the draftsman to expressly provide that the date of giving the notice was to be included in the 17 day period ( to expressly disapply the Lester v Garland approach). In effect, this was what had been done by making it clear ‘for the avoidance of all doubt’ that the notice would take effect on 24th October 2001. The notice was clear and valid.

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