At the other end of the spectrum, the longer a lease, the more difficult it will be to successfully say that he has been frustrated. An event that prevents the use of premises for a short period of time in a 30-year lease is not, in the language of National Carriers, an event “that significantly alters the nature (not just the cost or burden) of the current contract . . . . Obligations arising from what the parties could reasonably have considered at the time of their execution, namely that it would be unfair to maintain them in the proper sense of their provisions in the new circumstances. In the case of the “doctrine of frustration,” the lease is frustrated when, without the fault of the parties, the obligations arising from the agreement can no longer be met due to unforeseen circumstances, as originally planned. A tenant can apply if a landlord has violated a significant time frame of a tenancy agreement. Material concepts are considered very important – in fact, even the slightest breach of a material notion gives the other party the right to terminate the lease. An example of a material breakdown could be when an owner does not provide a service or facility that is included in the agreement, such as heat, electricity or water.
Commercial leases, like other commercial contracts, can be frustrated. Could a tenant therefore argue that his lease is frustrated, given that it is currently impossible to occupy premises because of the COVID 19 pandemic? It is worth starting to say that there are no reported cases in England where a commercial lease has been found to be frustrated by the courts. But there are also no English cases where we consider the frustration of the pandemic. How would a court react to such an argument? One of the “coronation cases” (where the coronation of King Edward VII was postponed due to the king`s illness) shows when a common goal would be thwarted. In Krell v. Henry [1903] 2 KB 740, the defendant agreed to rent the plaintiff`s apartment in Pall Mall for June 26 and 27 (days, but not nights). These were the days when it was announced that the coronation processions would take place and marched along the Pall Mall. Marcus Smith J stated that many leases do not allow tenants to suspend or suspend payment of rent and taxes, regardless of any event.
In such cases, the solution can be found either by mutual agreement between the parties or on the basis of sections 62 and 63 of the Indian Contract Act of 1872.