UK: Problems With Partitioning When Exercising A Break Clause

Last Updated: 28 October 2016
Article by Ben Dunbar

Break clauses are one of the most frequent causes of disputes between landlords and tenants. Depending on the specific drafting of the break clause when it was originally negotiated, a tenant could give its break notice expecting that its lease will come to an end automatically on the break date only to find that its break has not worked because it failed to comply with a condition of the break.

If there are conditions attached to the exercise of the break clause, these must be strictly complied with.  If not, they will prevent the break clause from taking effect and the lease will simply continue.  One condition which is often imposed is that the tenant must give up vacant possession.  In a recent case, Riverside Park Ltd v NHS Property Services Ltd, the High Court considered what this meant.

What does vacant possession mean?

The case law is clear that vacant possession is not given where there is an impediment that substantially prevents or interferes with the landlord exercising its right of possession to a substantial part of the property.  This could be a physical interference such as the tenant's possessions (chattels) still within the premises, or even piles of rubbish. It could also be because people are in the premises, either legally as they have an underlease or licence which entitles them to be there or because they are trespassing as in the case of squatters.

The classic risk to the tenant is that it does not realise that people are still in the premises.  In the case NYK Logistics (UK) Ltd v Ibrend Estates BV, the tenant had not cancelled the visits of its security guard so they were still attending for periods following the break date and there were also workmen in the premises trying to finish off repairs.  The tenant had failed to ensure that there was no one left at the property and so it had not given vacant possession and its break had failed.

Partitioning left on the premises

In Riverside Park, the tenant had taken a lease of premises in an open plan state.  In the usual way, it carried out various works to fit out the premises in accordance with its requirements including installation of partitions.

The landlord argued that vacant possession had not been given because the partitioning had been left.

The tenant argued that the partitioning was actually not a chattel (not forming part of the premises) but instead tenant's fixtures which were sufficiently annexed and attached to the premises that they became a part of it.  There was therefore no obligation to remove them in order to give vacant possession as they were actually part of the premises.

The tenant also argued in the alternative that if the partitions were actually chattels then leaving them in the premises did not stop vacant possession being given because they did not substantially prevent or interfere with the landlord's enjoyment of the premises.

The High Court ruled that on the facts of the case the partitions were chattels because they were demountable partitions. Though the partitions were fixed to the raised floor and the suspended ceiling the Court found that they could be removed without causing damage to the premises.   The partitions were being used to divide the space up into a series of small offices.  The Court decided that the partitioning was not a lasting improvement to the premises but was just something to suit the tenant operationally.

As chattels, given that they were all over the premises, it was unsurprising that the Court found in favour of the landlord that they did form a substantial impediment to the landlord exercising its right of possession.  Vacant possession had not been given by the tenant, so it had not satisfied the condition in the break clause and the break clause had not operated.

The Court then went on to say that even if it was wrong and the partitions were actually tenant's fixtures then on the particular definition of premises in the tenant's lease, tenant's fixtures were excluded from the definition so they had not become part of the premises.  Somewhat surprisingly the Court also said that even if the partitioning had become part of the premises, because on the facts the partitions were unapproved works not authorised by a licence for alterations, leaving them in the premises on the break date meant that vacant possession had not been given.

Tips for landlords and tenants

Although this case was only a High Court decision and turned on very specific facts, it is of interest as landlords may be able to use the argument that partitions which are easily demountable are chattels.  In the event that they are left by a tenant where a break clause is conditional on vacant possession, this would mean that their presence will mean the tenant has not successfully broken the lease. 

From a tenant's perspective, the case is a reminder that they must look carefully at the wording of their break clauses well in advance of seeking to exercise them so that they can establish what exactly they need to do, possibly even speaking to the landlord and seeking to negotiate a schedule for what needs to be stripped out. 

In fact, tenants who are well advised should when negotiating break clauses seek to ensure that vacant possession is not a condition of the break – it is just too risky.  The Code for Leasing Business Premises 2007 recommends that the condition should instead be watered down so that it refers instead to the tenant giving up occupation and leaving behind no continuing sub-leases.  The idea is that as long as the tenant has left and there are no other legal occupiers then the break would still work, leaving any questions as to belongings and rubbish as part of the dilapidations claim rather than stopping the break from operating.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.