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When is time of the essence?

When is time of the essence?

Where a lease specifies a date for compliance with an obligation such as the date for service of a break notice or for triggering a rent review, it is important to understand what happens if the date is missed.

Where a lease expressly states that time is of the essence (or it can be implied) failure to exercise the right in time will mean that the right is lost.
For rent review clauses, there is a general presumption that time is not of the essence, unless there are sufficient contra-indications as a result of:
• any of the express words of the lease;
• the surrounding circumstances;
• the relationship between the rent review clause and the other clauses in the lease.
In practice, this will mean that where a date for triggering a rent review has been missed, it is not necessarily the case that the right to review has been lost. Analysis of the lease will be required to consider whether time was intended to be of the essence or not.
By contrast to rent reviews, time is always of the essence in relation to break notices, meaning that a failure to comply strictly with time limits set out in the break clause can (and often does) prove to be fatal.
William Lawrence