Cases - Universities Superannuation Scheme Ltd v Marks & Spencer plc

Record details

Name

Universities Superannuation Scheme Ltd v Marks & Spencer plc

Date

(1998)

Citation

EGCS 168, CA

Keywords

Commercial property - landlord and tenant – service charge – calculation of service charge by rateable value – landlord’s agent - error in calculation – whether landlord entitled to claim underpayment caused by their agent’s error – whether calculation was final and binding

Summary

A 150-year lease of a large store in a shopping centre lease contained provision for payment of a service charge to be certified by the landlord annually. The tenant's proportion of the service charge expenditure was to be calculated by reference to the rateable value of the premises as a proportion of the aggregate of the rateable values of the centre. The landlord's agents incorrectly calculated the amount payable for two years and the landlord sought recovery of the underpayment for both periods. On appeal it was held that the tenant was liable to pay the service charge as the lease referred to the proportion being that calculated by rateable value. It did not specify that the tenant's liability was limited only to that which was certified and payment of an incorrectly calculated sum was not performance of the tenant's obligation.

In this instance, the certification process identified the total service charge expenditure for the centre and not the individual tenant proportions. The service charge was not expressly or by implication final and binding and the landlord was allowed to reopen the service charge calculation.