The Supreme Court recently confirmed (in Marks & Spencer Plc v  BNP Paribas) that the Court will not, where a break clause has been exercised, imply a term into a lease to allow a tenant to recover rent, or any other payments, made in advance (and covering the period after the break date) where there is no express term in the lease.

Tenants should, therefore, ensure that their leases expressly provide for a refund of advance rents, and any other payments, for the period from the break date up to the next rent payment date. Conversely, landlords should ensure that they take a firm stance, by retaining payments previously received, to any tenant who exercises a break and demands a refund of sums paid in advance where there is no express provision in the lease.