A lease contained a covenant against assignment without the Landlord’s consent, such consent not to be unreasonably withheld. The tenant asserted, pace Killick, that the landlord could not refuse consent on the grounds that the proposed tenant might not comply with the terms of the lease, and that the building obligation operated as a use restriction. The words ‘shall not be unreasonably withheld’ were words which, in any particular case the court neither could nor should, seeing that the circumstances were infinitely various, determine by strict rules the grounds on which a landlord might or might not reasonably refuse consent; that the utmost the courts could do was to give guidance, but no one decision would be a binding precedent as a strict rule of law; that judges’ reasons were to be treated as propositions of good sense, in relation to the particular case, not propositions of law. The following were overriding principles in determining whether or not a landlord had unreasonably withheld consent: a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease; it is not necessary for the landlord to prove that the conclusions which led him to refuse to consent were justified, if they were conclusions which might be reached by a reasonable man in the circumstances; in each case it is a question of fact, depending on all the circumstances, whether the landlord’s consent to an assignment has been unreasonably withheld.
Judges:
Lord Bingham of Cornhill, Lord Browne-Wilkinson, Lord Hoffmann, Lord Scott of Foscote and Lord Rodger of Earlsferry
Citations:
Times 12-Nov-2001, Gazette 22-Nov-2001, [2001] UKHL 59, [2001] 1 WLR 2180
Links:
Statutes:
Landlord and Tenant Act 1988 1
Jurisdiction:
England and Wales
Citing:
Approved – Bickel v Duke of Westminster CA 1977
The freeholder had refused consent to an assignment of the head lease of a house to a lady who, if she had become tenant under the head lease for five years, would have been entitled to buy the freehold from the Estate. The existing tenant was a . .
Wrongly decided – Killick v Second Covent Garden Property Co Ltd CA 1973
The belief of the landlord, however reasonable, that the proposed assignee intended to use the demised premises for a purpose which would give rise to a breach of the user covenant was not of itself a ground for withholding consent to assignment. . .
Appeal from – Ashworth Frazer Ltd v Gloucester City Council CA 3-Feb-2000
A landlord could not refuse to consent to an assignment because of a belief, even if reasonably based, that the intended use by the prospective assignee would be a breach of covenant under the lease. That did not mean that a landlord could not after . .
Reviewed – International Drilling Fluids v Louisville Investments (Uxbridge) Ltd CA 20-Nov-1985
Consent to Assignment Unreasonably Withheld
The landlord had refused a proposed assignment of office premises from a tenant who had occupied the premises as its permanent offices, to a tenant who proposed to use the premises as serviced offices – that is, for short-term rent to others. The . .
Cited – Bates v Donaldson CA 1896
The landlord had refused consent to an assignment of the lease to a respectable and responsible prospective tenant, for the reason that the landlord wished to place commercial pressure on the existing tenant to surrender the lease to the landlord. . .
Cited – Houlder Brothers and Co Ltd v Gibbs CA 1925
The landlord owned two adjoining commercial properties. The tenant of one proposed to assign the lease to the tenant of the adjoining property. The landlord refused consent on the ground that if the assignment went ahead, it was likely that the . .
Cited – Pimms Ltd v Tallow Chandlers Company CA 1964
The landlord had refused its consent to an assignment of the remaining term of a lease to a development company, which desired to acquire the lease because of its nuisance value, and to use its interest as a basis for inducing the landlord to enter . .
Mentioned – Viscount Tredegar v Harwood HL 1929
Landlord’s reserved right to approve insurer
A covenant in the lease required the lessee to insure the premises with a nominated insurer or another insurer approved by the lessor. The lessor refused to approve a responsible and reputable insurer because of his wish that all tenants insure with . .
Cited – Packaging Centre Ltd v Poland Street Estate Ltd 1961
A landlord may act reasonably if he refuses consent where the assignment of a lease will necessarily result in a breach of a user covenant. . .
Cited – Granada TV Network Ltd v Great Universal Stores Ltd 1963
A landlord may reasonably refuse consent to an assignment of a lease where the result of the assignment would inevitably be a breach of a user covenant. . .
Mentioned – West Layton Ltd v Ford; West Layton Ltd v Joseph and Another CA 12-Feb-1979
When considering whether to consent to an assignment of a lease, a landlord need consider only his own interests. . .
See Also – Ashworth Frazer Ltd v Gloucester City Council CA 20-Jan-1997
. .
At First Instance – Ashworth Frazer Ltd v Gloucester City Council ChD 1-Apr-1999
It might be correct for a landlord to refuse consent to assignment where its objection to the proposed user was that it was generally undesirable, and there need be shown no necessary implication that the use would not be allowed by the lease. . .
Cited by:
Cited – Arundel Corporation (an Overseas Company) v Mohammed Ramzan Khokher CA 9-Apr-2003
In the course of an application under the Landlord and Tenant Act, the landlord sought to adduce on appeal evidence that the tenant and his solicitors had sought to deceive the court.
Held: The application should not be heard in private since . .
Cited – First Penthouse Limited/Channel Hotels and Properties (UK) Limited v Channel Hotels and Properties (UK) Limited/Fahad Al Tamimi First Penthouse Limited Varlet International Limited Ruth Gary Orbach Quallvile Limited Norval Holdings Limited ChD 14-Nov-2003
Several transactions had taken place with regard to a lease of a roof void, which was to be developed for penthouses. The lease had been charged to secure funding. The development did not proceed to schedule, and a s146 notice was served. It was . .
Cited – NCR Ltd v Riverland Portfolio No.1 Ltd ChD 16-Jul-2004
The tenant complained that the landlord had unreasonably delayed approval of a proposed underletting.
Held: The court had to bear in mind that the consent was to an underlease, and that therefore there was no privity between the landlord and . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Cited – Lymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
Cited – Sequent Nominees Ltd (Formerly Rotrust Nominees Ltd) v Hautford Ltd SC 30-Oct-2019
The tenant promised in the lease not to apply for any planning permission without the consent of the landlord, not to be unreasonably withheld. The tenant wished to apply for planning permission for a change of use of part of the demised premises, . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 15 May 2022; Ref: scu.166804
