Boyer v Warbey: CA 1953

The tenant had vacated without notice, whereas he was bound to give three months’ notice. The landlord did re-let, and sued for the rent due up to the date of the re-letting (some three months) which the tenant resisted, claiming that the landlord should have re-let more quickly.
Held: Denning LJ said: ‘He [the tenant] went out of possession, it is true, and thereupon the landlords would have been entitled to recover possession if they had so wished. But they did not so wish. They were not bound to accept possession whenever the tenant chose to offer it. They were entitled to hold him to the tenancy until he gave a valid three months’ notice to quit. Very sensibly they did try to re-let; and as soon as they re-let the statutory tenancy came to an end by surrender by operation of law. But until it came to an end by valid notice to quit or by surrender they were entitled to hold the tenant liable for rent.’
Romer LJ said: ‘A tenant who goes out of possession without giving due notice has no right to dictate to his landlord how he shall deal with his property; and why the landlords here should have disposed of the flat in a manner disadvantageous to themselves in order to save the tenant from the full consequences of his wrongful act I am at a loss to conceive.’
Denning LJ held that the law in England had developed to a point which warranted a different conclusion: ‘I know that before the Judicature Act 1873, it was said that the doctrine of covenants running with the land only applied to covenants under seal and not to agreements under hand: see Elliott v Johnson. But since the fusion of law and equity the position is different. The distinction between agreements under hand and covenants under seal has been largely obliterated. There is no valid reason nowadays why the doctrine of covenants running with the land – or with the reversion – should not apply equally to agreements under hand as to covenants under seal; and I think we should so hold, not only in the case of agreements for more than three years which need the intervention of equity to perfect them, but also in the case of agreements for three years or less which do not . .’

Denning LJ, Romer LJ
[1953] 1 QB 234
England and Wales
Cited by:
CitedReichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Landlord and Tenant

Updated: 23 November 2021; Ref: scu.247623