Vistra Trust Corporation (UK) Limited v CDS (Superstores International) Limited

A tenant’s contractual break notice may be served years before the break date where the lease requires only a minimum period of notice and contains no maximum period or reasonable-time limitation.

Once a tenant has served a valid break notice, any successor tenant is precluded from making a request for a new tenancy under section 26 of the Landlord and Tenant Act 1954. A request commencing immediately after the break date also fails where that date is earlier than the date on which the current tenancy would otherwise end.

On summary judgment, the court may decide a short point of law or construction where the evidence is sufficient, but must not conduct a mini-trial.

The claimant, trustee of an investment fund, sought declarations concerning the termination of a retail-store lease and the validity of the defendant assignee’s request for a new business tenancy.

The predecessor tenant had served a contractual break notice for 11 February 2023 before assigning the lease to the defendant. The defendant later served a request under section 26 of the Landlord and Tenant Act 1954 for a new tenancy beginning the following day.

The claimant applied under Part 24 for summary judgment. The defendant challenged the validity and service of the break notice and argued that section 26(4) applied only where the current tenant itself had served the notice to quit.

1. Summary judgment. The court applied the approach in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch). The defendant had to show a realistic prospect of success, not merely an arguable case. The court could decide a short point of law or construction where the evidence was sufficient, while avoiding a mini-trial. The defendant had not established a proper evidential foundation for further evidence likely to affect the outcome.
2. Break notice. The notice was not invalid for prematurity. Clause 21 required at least six calendar months’ notice but imposed no maximum period. The court declined to imply a requirement that notice be given only within a reasonable period before that minimum notice period. The notice was therefore capable of being served more than four years before the break date.
3. The court found that the managing agent and its solicitors had authority to serve the notice. The difference in spacing in the tenant’s name did not create uncertainty for a reasonable recipient. The evidence was sufficient to establish that the notice had been sent by special delivery, and the defendant had raised no triable issue as to service, withdrawal or suspension.
4. Section 26. Section 26(4) of the Landlord and Tenant Act 1954 was not confined to a notice to quit served by the same tenant who later made the request. After a contractual break notice has been served, any tenant of the premises is precluded from making a section 26 request. Further, under section 26(2), a request for a tenancy beginning immediately after the break date was invalid because that date preceded the date on which the existing tenancy would otherwise end by effluxion of time. The court relied on Garston v Scottish Widows’ Fund and Life Assurance Society [1996] 1 WLR 834, approved on appeal at [1998] 1 WLR 1583.
5. The claimant’s application was granted. The defendant had no real prospect of successfully defending the claim and no other reason for a trial was shown.