The landlord sought leave to appeal against a refusal to award it costs associated with the service of a section 146 notice on the tenant. The tenant had covenanted to repair, and to indemnify the landlord against expenses of such notices. The tenant had claimed the benefit of having given a notice under the 1938 Act, saying that no action could be taken until a court had determined the liability. The claim was for expenses which the landlord said were due as a debt because of the terms of the lease, in respect of costs after service of the counter-notice. The landlord never took steps to proceed with the 1938 Act notice.
Held: Leave was refused. Because no steps had been taken, the section 146 proceedings were not continuing, and the landlord’s actions were not in connection with it. They could have made that choice, but did not. Because the landlord had required the tenant to complete the works, and that had happened, the landlord had lost the opportunity to complain.
Ward, Hughes, Patten LJJ
 EWCA Civ 229
Leasehold Property (Repairs) Act 1938, Law of Property Act 1925 146
England and Wales
Cited – Middlegate Properties Limited v Gidlow-Jackson CA 1977
Cited – Jervis v Harris CA 9-Nov-1995
A provision in the lease obliged a tenant to carry out repairs and provided that if he did not do so, the landlord might do the repairs and recover from the tenant the costs and expenses of doing so.
Held: The provision was not a penalty. The . .
Cited – Riverside Property Investments Ltd v Blackhawk Automotive TCC 8-Dec-2004
Breach of tenant’s repairing covenant . .
Cited – Landmaster Properties Limited v Thackeray Property Services Limited 2003
The landlord served a section 146 notice and the tenant served a counternotice under the 1938 Act. The landlord sought leave to forfeit the lease.
Held: Leave was given under ground (e) to forfeit the lease of a public house which had closed . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 01 November 2021; Ref: scu.402949