Understanding commercial rent review disputes and the Calderbank Offer
In the course of commercial property letting, it is sometimes inevitable that a dispute may arise regarding the rent – either from the side of the landlord or the tenant. We examine the most famous rent dispute in an effort to understand how such disagreements can be resolved.
What is a Calderbank Offer?
A Calderbank Offer is an offer made ‘without prejudice, save as to costs’ in order to settle a dispute without incurring extra costs and the possibility of a full trial. The term stems from a divorce case in 1975 in which the judge decided that in a case of litigation, where the winning party has refused an earlier settlement, the losing party may present the details of the offer as evidence towards costs.
The implications this has in commercial property rent disputes are that if the winner of such a dispute is awarded less costs than was previously offered, the losing party may be able to pay a reduced amount of costs to the winning party.
How does this affect commercial property rent review disputes?
Rent reviews can be a bone of contention between landlord and tenant. They typically take place every three to five years – historically this period of time was seven or 14 years. However, with the shorter terms of modern commercial leases, usually between 10 and 15 years, rent reviews now occur more frequently.
The rent review clause in the lease will set out when the reviews will take place and how the new figure will be arrived at, what procedure will be followed and how any disputes, if any, will be dealt with. The most common method of recalculating a commercial rent is revaluation in the open market.
The Royal Institution of Chartered Surveyors (RICS) publishes a voluntary Code for Leasing Business Premises in England and Wales which aims to promote the values of fairness and negotiating commercial leases on the basis of informed choices, for both landlords and tenants.
The review will be based on the open market value of similar properties, on similar leases, in the local area. In some cases, the lease will stipulate that the rent will be increased, ‘upwards only’ which allows the landlord to increase it by the agreed amount. However, if, during the course of his or her research, the tenant discovers that the local market value is actually lower than the increase being asked for by the landlord, negotiations may take place.
This is where the Calderbank offer is of particular relevance to commercial property. If, during the course of negotiations, a tenant makes the landlord an offer of a reduced rent via a negotiator (usually an independent surveyor), in line with local market values and this is at first refused but then later accepted by the landlord, the tenant can use the first refusal both to argue their case and to claim any subsequent costs.
Commercial rent reviews can be fraught with difficulties and create an atmosphere of anxiety and disharmony between landlord and tenant. In order to avoid such a scenario it is essential that before the tenant signs the lease it is professionally examined to ensure that the clauses are fair and reasonable for both parties.
For advice and information on any aspect of commercial rent reviews, either from the perspective of a tenant or a landlord, contact the Eddisons team. Our highly-qualified, independent RICS surveyors have extensive and current experience on a wide range of matters relating to what can be a thorny issue.
Written by: Steven Jones on Wednesday 13/07/2016