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Wilderbrook Ltd v Oluwu [2005] EWCA Civ 1361

To rebut the presumption that time was not of the essence in rent review clauses, the contra-indications had to be clear and explicit. Where a paragraph was inserted in the lease that was plainly intended to limit deeming provisions that would otherwise be clear contra-indications, its effect was to deprive the contra-indications relied on of the clarity required to rebut the presumption, which accordingly operated.

2 December 2005

The appellant landlords (W) appealed against the refusal to grant a declaration that a new rent had been agreed between them and the respondent tenant (O). A rent review notice was sent to O, on behalf of W, by recorded delivery. It was delivered to the premises subject of the lease on the following day. Over a month later O's surveyor responded confirming receipt of the notice and that they would be writing to establish the proposed rent. W's agent responded stating that a counter-notice had not been served within one month of receipt of the rent review notice and that O was deemed to have agreed to pay the rent specified in the notice. O accepted that the notice had been delivered to the premises but argued that it had not been received by him or his agent until later and that the counter-notice was served within one month of receipt of the rent notice. O further claimed that para 13 of the third schedule of the lease ensured that time was not of the essence with respect to the count...

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