Bennett Properties v H and S Engineering: QBD 14 Oct 1998

The parties had been landlord and tenant and the lease was to be renewed for a second time. They negotiated and ageed terms for the next lease, including particularly a new rent, but the tenant did not execute the new lease. The landlord had properly served his section 25 notice, but the tenant had not served any counternotice. The lease expired. The tenant remained in possession paying rent demands including one apportioned between the changed rents, and two subsequent rent demands at the new rent. The tenant then served a notice expiring at the end of a quarter, but claimed that as a tenant holding over pending a new lease he was a mere tenant at will, and therefore not bound to give any notice. The landlord said that by acting as he had, a tenancy from year to year had been created, and that the notice was ineffective, and claimed rent until the next lawful date for termination of such a lease. The tenant counterclaimed for the landlord’s failure to repair the roof amounted to a derogation from the grant despite the absence of any repairing covenants in the leases.
Held: The landlord’s claim succeeded, and the counterclaim failed. It was not possible to use the covenants for quiet enjoyment and for non-derogation from the grant to create an obligation to repair.
Though a mere payment and acceptance of rent was insufficient to allow an inference of a contractual tenancy, where there was a holding over in the context of a statutory protection, the common law presumption of the creation of a tenancy from year to year still applied where rent was paid by reference to an annual payment and where the demand for, and payment and acceptance of rent could not be explained solely by reference to that statutory protection.


Kershaw QC J


Unreported, 14, October 1998


Landlord and Tenant Act 1954 25


England and Wales


CitedCole v Kelly CA 1920
In the absence of a contrary intention a concurrent lease passes to the concurrent lessee the concurrent lessor’s accrued rights under the existing lease. The landlord has granted to the second lessee a pro tanto disposition of the reversionary . .
CitedLongrigg, Burrough Trounson v Smith CA 1979
The defendant dealer in antiques also lived in the property with his wife. He refused to leave after the expiry of the term, claiming a Rent Act tenancy. The lessors had accepted rent from the defendant undertenant who contended that thereby a new . .
CitedWestminster (Duke of) and others v Guild CA 30-Mar-1983
The landlord brought an action for non-payment of rent. The tenant sought to set off a failure by the landlord to repair the building of which his flat was part and which failure had caused him loss. The landlord said that it had no express duty to . .
CitedJavad v Aqil CA 15-May-1990
P in possession – tenancy at will Until Completion
A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
Held: The tenant’s appeal failed. It was inferred . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 29 May 2022; Ref: scu.352246