An agreement by a landlord in a periodic tenancy not to serve notice to quit for three years unless it required the premises for its own use was valid.
Scott LJ said: ‘The phrase ‘subject-matter of the lease’ was, as we know, substituted for the ancient expression ‘touching and concerning the land’. Professor Cheshire’s elucidation of its meaning on pp.214-5 of the 5th ed. of his book on ‘Modern Real Property’, in my respectful opinion, supplies the true test. ‘If a simple test’, he says, ‘is desired for ascertaining into which category a covenant falls, it is suggested that the proper inquiry should be whether the covenant affects either the landlord qua landlord or the tenant qua tenant. A covenant may very well have reference to the land, but, unless it is reasonably incidental to the relation of landlord and tenant, it cannot be said to touch and concern the land so as to be capable of running therewith or with the reversion. Tested by this principle the following covenants have been held to touch and concern the land’. Of the covenants by the tenant running with the land that ‘to pay rent or taxes’ and ‘not to assign or underlet’, and by the landlord running with the reversion, ‘to renew the lease’ are the most apposite of the instances which he quotes from decided cases.’
Judges:
Scott LJ
Citations:
[1948] 2 KB 1
Cited by:
Cited – Berrisford v Mexfield Housing Co-Operative Ltd SC 9-Nov-2011
The tenant appealed against an order granting possession. The tenancy, being held of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 06 May 2022; Ref: scu.448473
