Tenants trying to use Brexit as an excuse to break lease agreements is worrying for landlords

Richard Sutton Sunny Landa

When people hear the word Brexit, they often automatically think 鈥渦ncertainty鈥. With the government and opposition dithering, some say the economy could come to a standstill.

At NG, we鈥檙e nowhere near as pessimistic 鈥 we鈥檙e still seeing a very encouraging number of deals being completed across all size ranges and sectors, as a stream of businesses look to move to bigger or better premises.

As legendary businessman J Paul Getty said: 鈥淲ithout the element of uncertainty, the bringing off of even the greatest business triumph would be dull, routine and eminently unsatisfying.鈥

We don鈥檛 think that risk management should be eliminated from the business owner鈥檚 handbook, but we were seeing a worrying trend in the commercial property world, of tenants being advised to write 鈥淏rexit lease breaks鈥 into their leases. Commercial property tenants or investors have been including 鈥淏rexit clauses鈥 in contracts, allowing them to walk away from the deals should Britain leaving the European Union without a deal, which could plunge the domestic economy into recession.

In other cases, buyers have yet to exercise such get-out clauses but are keeping the option open to try to renegotiate the price down, according to some property lawyers and managers.

However, in February, the High Court ruled that the European Medicines Agency, which has relocated to Amsterdam as a result of the UK鈥檚 vote to leave the EU, could not use Brexit as a reason to break its multimillion-pound lease in Canary Wharf, London. The result of this test case left landlords breathing a sigh of relief 鈥 although permission to appeal has been granted.

Any Brexit clause included in tenancy agreements would only be the thin end of the wedge

Despite this, tenants trying to use Brexit as an excuse to break lease agreements is a worrying development for landlords, who are working hard enough as it is to make their property portfolios as attractive as possible to prospective tenants, investing heavily in refurbishments and 鈥渟mart office鈥 technology to try to entice a younger workforce who are looking for a 鈥渉ome from home鈥 when they鈥檙e choosing which company to work for and in what office.

Any Brexit clause included in tenancy agreements would only be the thin end of the wedge. What next? Would similar clauses be written into contracts if US president Donald Trump imposes huge tariffs when the UK leaves the EU? Would commercial property contracts become, in effect 鈥渞ecession-proof鈥, and not worth the paper they鈥檙e written on for a landlord who has invested heavily in the properties? Or what if a general election result were to go 鈥渢he wrong way鈥?

Which takes us back to uncertainty: businesses need certainty that they will have the choice of the very best office or commercial stock. If not, they鈥檒l look elsewhere, or simply stagnate. We鈥檝e seen how, over the last decade, Nottingham has suffered from a lack of inward investment because of a lack of Grade A office space. What we musn鈥檛 do is let uncertainty creep into property contracts, with the tenant able to walk away blaming Brexit. After all, what would J Paul Getty have to say about that?

Sunny Landa and Richard Sutton are directors at NG Chartered Surveyors

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