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Time In Rent Reviews

QUESTION: I occupy offices and the Landlord has written that it wants to action a rent review from 2004. Time is not of the essence. Is it reasonable to demand an uplift in rent so long after the review date?

A tenant often considers that it is for the landlord to instigate a rent review, and that if it has not done so, it would be equitable for it to seek an increase so far after the review date.

However, under most leases the tenant can initiate the rent review by applying to the RICS for the appointment of a third party. If a tenant has a rent review and the date has passed without the landlord having done anything, it should contact the landlord and ask for the review to be documented at a nil increase.

If the landlord disagrees, tenants under most leases can press for the appointment of a third party. If there is genuinely no prospect of an increase, the landlord will usually concede and agree to document review at a nil increase.

However, where this is not possible there is another solution, highlighted by the case of Barclays v Savile Estates (2002). Four years after the review date, an agreement had still not been reached, so the tenant served a notice on the landlord requiring it to make an application to the RICS for the appointment of a third party within a time of the essence period.

When the landlord did not respond in time, the court held that the tenant had successfully made the response to its notice time of the essence and the landlord had foregone the right to take the rent review to the third party. Therefore, there could be no increase.

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