Cases - New Zealand Government Property Corporation v HM&S Ltd (No. 2)
Record details
- Name
- New Zealand Government Property Corporation v HM&S Ltd
- Date
- (1982)
- Citation
- 263 EG 765, CA or 257 EG 607
- Legislation
- Keywords
- Commercial property – rent review – tenant’s improvements – clause making express provision for assumption of vacant possession - new lease - lease incorporating the disregarding provisions of section 34(1) of the Landlord and tenant Act 1954 – whether section 34(1) applies to improvements made by a tenant during a previous lease –whether the tenant was assumed to have vacated the premises for the purposes of the rent review – whether the tenant’s fixtures and fitting were deemed to have been removed – Landlord and Tenant Act 1954, s. 34(1)
- Summary
-
A long lease of a theatre was granted in 1896 and the tenant carried out the fitting out. In 1973 a new lease was granted pursuant to the Landlord and Tenant Act 1954, containing a rent review clause which incorporated the disregarding provisions of section 34(1) of the 1954 Act. The direction in section 34(1) to disregard tenant's improvements applies to those made during a previous lease only if they were made not more than 21 years before the review date, so the original fit out was not to be disregarded under those provisions. However, the tenants successfully argued that the express assumption in the review clause of a letting with vacant possession meant that the actual tenant was assumed to have vacated and to have taken with him his trade fixtures, which the common law entitled a tenant to remove, and that the theatre fittings were in the nature of tenant's fixtures and were therefore deemed to have been removed.