Home Information Cases Dukeminster (Ebbgate House One) Ltd v Somerfield Property Company Ltd (1997)

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Dukeminster (Ebbgate House One) Ltd v Somerfield Property Company Ltd (1997)

Summary

Construing a rent review clause which put the notional premises from which market rent was to be ascertained in a wide area where widely differing rents for such premises were being charged.

Facts

Defendant's appeal from part of an order of Michael Hart QC on the 14th March 1996 in the Chancery Division granting the declaration sought by the landlord as to the true construction of rent review provisions in an underlease. These provided that review of rent was to proceed by a process which involved arriving at either a rental value for the demised premises or a rental value for "notional premises" which was then adjusted.

Held

The definition of "the notional premises" in para 2 of the Sixth Schedule of the Underlease meant that the warehouse unit either where the premises was situated or in a location comparable thereto within a thirty-five mile radius of Ross-on-Wye and having the following characteristics etc. The Court did not accept the argument that this solution was unworkable because it would be impossible to tell whether any given location was or was not comparable with the site in Ross-on-Wye. It was not possible to believe that experienced valuers, whose decisions as to whether other premises were comparable or not necessarily involved the comparability of the area in which they are situated, would be unable to carry out this exercise. In practice it might be best for each side's valuer to start by compiling a list of 50,000 square foot warehouses in locations within the prescribed area, which in his view, were capable of being comparable with the site in Ross-in-Wye. "Comparable" did not mean "identical". Appeal allowed. The judge's declaration would be discharged and a declaration consonant with the views expressed above would be substituted therefore.

Court of Appeal
Nourse LJJ, Henry LJJ, Swinton Thomas LLJ
Judgment date
29 July 1997
References

[1997] 2 EGLR 125 LTL 29/7/97 : (1998) 75 P & CR 154 : [1997] 2 EGLR 125 : [1997] 40 EG 157 : [1997] EG 126 (CS) : [1997] NPC 127 : (1997) 74 P & CR D37 : Times, August 13, 1997

Practice areas