Category: Landlord and Tenant

Pritchard and Others v Teitelbaum and Others: ChD 20 Apr 2011

The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The landlords had said that they required possession on the day, they had not informed the applicant that a possession warrant had been obtained and was to be executed, but ‘there is simply no requirement in any High Court rule or in the forms for the writ of possession that notice needs to be given to the persons against whom the order for possession will be executed.’

Judges:

Morgan J

Citations:

[2011] EWHC 1063 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Forcelux Ltd v Binnie CA 21-Oct-2009
Forcelux and Mr Binnie were the landlord and tenant of a flat in Lincoln. Under the lease, the tenant was obliged to pay ground rent and other charges. The lease contained a forfeiture provision in the event of non-payment of rent or charges. Mr . .
Cited – London Borough of Hackney v Findlay CA 20-Jan-2011
An application had been made to set aside a possession order obtained by a social landlord and determined by a district judge who applied CPR3.1 (7), when setting the possession order aside. By the time the landlord’s appeal against that decision . .
Cited – Greater London Council v Jenkins 1975
A landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so, and the court has no discretion to deny such use merely on the grounds that the proceedings are rapid and summary and that the defendants . .
Cited – Aglionby v Cohen 1955
A freeholder with an order for possession is entitled to enforce that order in its favour without issuing and enforcing a writ of possession. . .
Cited – Jephson Homes Housing Association v Moisejevs and Another CA 1-Nov-2000
A possession warrant, properly issued and executed in ignorance of a payment into court by the tenant was not an abuse of process. The tenant had paid funds into court in the mistaken belief that this would be effective to set aside the warrant. She . .
Cited – McPhail v Persons, Names Unknown CA 1973
The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court . .
Cited – Fleet Mortgage and Investment Company Limited v Lower Maisonette 1972
Natural justice required the High Court Rules to be construed as requiring the tenant to be given notice of the landlord’s application for leave to issue a writ of execution following an alleged breach of a conditional possession order. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 25 July 2022; Ref: scu.434885

Cascades and Quayside Ltd v Cascades Freehold Ltd: CA 6 Dec 2007

Gibson LJ said: ‘it is not in dispute that the purpose of section 99(5) in requiring the tenant himself to sign it and not allowing an agent to do so, must have been so that the tenant really knew what he was doing.’

Judges:

Dyson, Jacob LJJ, Sir Peter Gibson

Citations:

[2007] EWCA Civ 1555, [2008] L and TR 23

Links:

Bailii

Statutes:

Leasehold Reform Housing and Urban Development Act 1993 13

Jurisdiction:

England and Wales

Cited by:

Cited – Hilmi and Associates Ltd v 20 Pembridge Villas Freehold Ltd CA 30-Mar-2010
The tenants gave a notice seeking to exercise their right to acquire the freehold building. The landlord challenged the validity of the notice saying that for a company tenant, the notice had been signed only by a director using his own name with . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.341672

Artworld Financial Corporation v Safaryan and Others: CA 27 Feb 2009

The parties disputed whether the landlord had accepted the surrender of a lease. The tenant had handed in the keys. The landlord claimed rent for the subsequent period. The court had found surrender by operation of law, the landlord taking several steps after the keys had been handed in to make the property suitable for reletting, and in fact occupying it.
Held: The landlord’s appeal failed. The judge had correctly identified the applicable law, and applied it to the facts. The court approved the judge’s description of the test which was to be applied. If there is an unequivocal offering and taking of possession, then it will be inequitable (without more) for one party to deny that the tenancy has ended by surrender In this case the landlord had gone beyond protecting his own interests in the property and occupied it.
Jacob LJ said: ‘It was common ground that the legal test for surrender by operation of law, is essentially accurately set out in Woodfall’s Law of Landlord and Tenant. I am reading from an edition which appears to have a date of January 2007. Paragraph 17.018 says: ‘There is legal distinction between a surrender by operation of law and an implied surrender. The terms surrender by operation of law ‘is applied to cases where the owner of a particular estate has been a party to some act the validity of which he is afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist . .
There the law treats the doing of such act as constituting a surrender. This principle does not depend on the actual intention of the parties but on estoppel. A surrender by operation of law does not depend on the intention of the parties; it takes place independently and, even in spite of intention, the foundation of the doctrine is estoppel.
Most critically for present purposes is paragraph 17.020, headed ‘Act must be unequivocal’: ‘The conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended. There must either be relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy, and the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ceased.”
Dyson LJ adopted the following from the judgment by Hazel Marshall QC at first instance: ‘(1) The issue of whether there has been a surrender by operation of law after a tenant’s abandonment of the leased premises must be determined by evaluating the effect of the landlord’s conduct as a whole (cf. London Borough of Brent v Sharma (1992) 25 HLR 257 at 259). I accept Mr Kremen’s argument that the totality of such acts can amount to a resumption of possession even though individual acts might each be only equivocal. With this in mind-
(2) The test is whether the landlord’s conduct is ‘so’ inconsistent (Oastler v Henderson 1877 2 QBD 575 at 577) with the continuation of the tenant’s lease that it could only be justified as being lawful on the basis that the landlord has accepted the tenant’s implied offer to give back possession, and has taken possession of the premises beneficially for himself.
(3) Accepting back the keys without more will always be equivocal. As a matter of practicality and common sense, one party has to hold the keys to prevent an absurd situation in which they are passed back and forth because neither party wants to risk it being suggested that it has made an admission by holding them.
(4) Any act of the landlord which is consistent with its rights under the lease, such as entering the premises to inspect or to repair them, will not in itself give rise to a surrender because, by definition, it is not inconsistent with the lease continuing.
(5) Any further act of the landlord which amounts to protecting or preserving the property, such as taking security measures or doing necessary repairs, will not in itself give rise to a surrender because such self-help, necessary to preserve the landlord’s interest in the value of his property, is a reasonable response to the tenant’s evinced intention not to perform the obligations of the tenancy: cf. McDougall’s Catering Foods Ltd v BSE Trading Ltd 1998 P and CR 312; Relvok Properties Ltd v Dixon (1972) 25 P and CR 1, at p 7.
(6) Similarly, any act of the landlord which amounts to the landlord’s performing the tenant’s covenants under the lease, such as keeping the garden tidy, would not necessarily amount to a resumption of possession as it is not inconsistent with holding the defaulting tenant to performing the lease.
(7) Any further act of the landlord referable to the landlord’s seeking to re-let the premises will not necessarily give rise to a surrender by operation of law, as it is no more than what the landlord might reasonably be expected to do in the circumstance for the potential benefit of all parties: Oastler v Henderson (above). The landlord must be entitled to seek to mitigate the damage caused in reality (even if not yet technically in law so long as the lease remains extant) by the tenant’s abandoning the lease, by seeking to obtain another tenant, without thereby losing his rights against the original tenant if he is unable to do so.
(8) However, if the landlord goes further and uses the premises for his own benefit beyond the totally trivial-and certainly, in my judgment, if such use amounts to occupation of the premises-then he re-takes possession of the premises inconsistently with the continuance of the lease. This will give rise to a surrender by operation of law, since it is only on the basis of having accepted such a surrender that the landlord’s acts would be lawful.’

Judges:

Sedley LJ, Dyson LJ, Jacob LJ

Citations:

[2009] EWCA Civ 303, [2009] 23 EG 94

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Oastler v Henderson 1877
The tenancy was for seven years. Shortly after its creation, the tenant left the keys with the agent and asked him to dispose of it or make the best bargain for surrender he could, and left for America. A tenant not being found, the agent returned . .
Cited – Bellcourt Estates Ltd v Adesina CA 18-Feb-2005
The landlord sought to recover arrears of rent. The tenant said that she had surrendered the lease of the properties. The judge had held that she ceased to occupy the premises from November 2000, after which the landlord did not send a demand for . .
Cited – Relvok Properties Ltd v Dixon CA 1972
A lease was assigned to a Mr Krokidis who then departed. The landlords instructed Estate Agents to change the locks. The defendants said that that amounted to a surrender of the lease.
Held: They were wrong: ‘In my judgment Judge Irving . .
Cited – McDougalls Catering Foods Limited v BSE Trading Limited CA 2-May-1997
The appellant had guaranteed the tenant’s obligations under an underlease. The tenant having become insolvent, the landlord sought to enforce the guarantee. The appellant said that the landlord had accepted a surrender of the underlease. The . .
Cited – Proudreed Ltd v Microgen Holdings Plc CA 17-Jul-1995
The handing back of keys without more does not of itself constitute a lease surrender. The passage in Tarjoumi as to implied surrender would have been more correct if there was added the phrase: ‘or such as to render it inequitable for the landlord . .
Cited – London Borough of Brent v Sharma and Vyas CA 1992
A tenancy of a flat was granted to Miss Vyas. She occupied it with Mr Sharma. They later married. She moved out and was given the tenancy of a council house elsewhere. She then wrote to Brent, the landlords, to say she was no longer sharing with Mr . .

Cited by:

Cited – QFS Scaffolding Ltd v Sable and Another CA 17-Jun-2010
The parties disputed whether a lease from S to LDC had been surrendered. S and QFS were negotiating for a renewal lease. No new lease having been agreed the parties agreed to a monthly sum to be paid pending agreement. L then let to a third party . .
Cited – Padwick Properties Ltd v Punj Lloyd Ltd ChD 9-Mar-2016
The tenant had left the property, their solicitors writing informing the landlord that it had vacated the Property and asserting that ‘the security and safety of the Property will revert to your client.’ The keys were returned, and on the insolvency . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.341235

Basch v Stekel and Another: CA 25 Jul 2000

The deceased had given a guarantee of the tenant’s covenant given by his company under a lease. The court was asked whether the obligations under the guarantee survived his death after he company was wound up.
Held: Chadwick LJ explained the Hindcastle case: ‘Lord Nicholls explained in Hindcastle v. Barbara Attenborough why the former practice [of including a put option in a guarantee] was unnecessary. He pointed out that the operation of section 178 of the Insolvency Act 1986 is limited by the provisions in paragraph (b) of subsection (4). The disclaimer takes effect under the section only in so far as is necessary for the purpose of releasing the insolvent company from liability. The disclaimer does not affect the rights and liabilities of other persons, in particular persons such as a surety or an original tenant. Nevertheless, the tenancy, itself, does cease to exist as an estate in the land demised by the lease. The relationship of landlord and tenant is preserved notionally for the purposes only of giving rise to an obligation on the surety or other third parties.’

Judges:

Chadwick LJ, Buxton LJ

Citations:

[2000] EWCA Civ 3033, [2001] LandTR 1, (2001) 81 PandCR DG1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hindcastle Ltd v Barbara Attenborough Associates Ltd and Others HL 22-Feb-1996
The guarantor of an original tenant under the lease remains liable after the disclaimer the lease on insolvency. The disclaimer operates to determine the lease altogether with the result that the landlord’s reversion is accelerated. ‘In order to . .
Cited – Stacey v Hill CA 1901
The surety for performance of the tenant’s covenants under the lease which was ‘to remain in force concurrently with the lease for a period of five years’ was discharged by the disclaimer of the lease by the insolvent tenant’s liquidator. The lease . .

Cited by:

Cited – Shaw v Doleman CA 1-Apr-2009
The landlord had taken a guarantee of the lease from the tenant when granting a licence to assign to the new tenant. That new tenant had become insolvent and the liquidator had disclaimed the lease. The court considered the position under Hindcastle . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.330963

Ali v Khosla and Khosla and others: IHCS 16 May 2003

Judges:

Lord Johnston and Lord Osborne and Lord Weir

Citations:

[2003] ScotCS 145

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.183925

TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd and Others: QBD 4 Jun 2019

The parties disputed the effect of agreements to exclude the protections of the 1954 Act, where the supporting notices failed correctly to specify the commencement dates of the terms granted.

Judges:

Judge Davis-White QC sitting as a High Court judge

Citations:

[2019] EWHC 1363 (Ch), [2019] WLR(D) 331

Links:

Bailii, WLRD

Statutes:

Landlord and Tenant Act 1954

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.639721

Joint London Holdings Ltd v Mount Cook Ltd; Mount Cook Ltd v Joint London Holdings Ltd and Another: ChD 2 Mar 2005

A lease created in 1950 included a covenant that the premises should not be used for the business of a ‘victualler, vintner, tavern keeper, vendor of malt liquor, restaurant or coffee house keeper’ without the landlord’s consent. Declarations were sought as to the lawfulness of the intended use as a high class sandwich shop.
Held: The words used were precise but of their time. When looked at now the court could only interpret the clause as at the date it was entered into. The intended use would not provide any facility for customers to sit down to drink or eat, and therefore it would not count as a coffee house (as distinct from Mortimer). The term ‘victualler’ had by 1950 acquired a meaning associated with the sale of alcohol. The use would not infringe the covenant.

Judges:

Blackburne J

Citations:

Times 12-May-2005

Jurisdiction:

England and Wales

Citing:

Cited – Earl of Lonsdale v Attorney-General 1982
The task of interpretation a lease has to be carried out against the background knowledge which would reasonably be available to the contracting parties in the situation in which they were at the time of the execution of the lease, applying the . .
Distinguished – Mortimer Investments Ltd v Mount Eden Land Ltd 26-Mar-1997
The court was asked as to the interpretation of an elderly restrictive user covenant in a lease. The proposed use was by a sub-tenant as a sandwich bar serving ready prepared food, including cooked food, to take away and also to consume on the . .
Cited – Fitz v Iles CA 8-Nov-1892
The plaintiff, George Fitz, was the tenant under a lease in which he covenanted to carry on the business of a coffee house keeper. The lessor, Daniel Iles, covenanted not during the term to let any shop in the same road, over which he had any . .
Cited – Skillion pIc v Keltec Industrial Research Ltd 1992
In the context of a covenant in a lease restricting the tenant’s use of the demised premises, it is the landlord who requires and puts forward the clause, and, the landlord will be treated as the proposer and the clause must therefore be construed . .

Cited by:

Appeal from – Mount Cook Land Ltd v Joint London Holdings Ltd and Another CA 7-Oct-2005
The head lease contained a covenant against use of the premises as ‘victuallers’. The tenant sublet the premises for use as a sandwich shop. The tenant argued that the word ‘victuallers’ was to be construed only to prevent the use as ‘licensed . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.224868

Addin v Secretary of State for the Environment: ChD 1997

The lease provided for seven-yearly rent reviews. The landlord argued that the reddendum gave the right to trigger a review to him alone. If he chose not to do so, then no review would take place. The tenant contended that the opening words of the reddendum provided for a review every seven years and that sub- clauses (a)-(d) were merely machinery. If the review was compulsory, then the Court could supply the machinery by implying whatever term was necessary to enable the review to take place.
Held: The court accepted the tenant’s argument

Judges:

Jacob J

Citations:

[1997] 1 EGLR 99

Jurisdiction:

England and Wales

Citing:

Cited – Royal Bank of Scotland v Jennings, Pezaro and Circuitpoint (Brewery Road) Limited CA 24-Oct-1996
The reddendum in the lease provided for a rent review: ‘there will be a rent review for each of the review periods’. The express machinery for such review could only be initiated by the landlord, but in refusing to initiate a review the landlord was . .

Cited by:

Cited – Hemingway Realty Ltd v Clothworkers’ Company ChD 8-Mar-2005
The lease provided for a rent review under which the rent might either be increased or decreased. The landlord had chosen not to exercise the clause in view of falling rents. The tenant purported to do so. The landlord said that it alone had the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 24 July 2022; Ref: scu.223572

Woodward v Earl Lincoln: 2 Dec 1674

Assistance rendered to magistrates making restitution after a forcible entry, is a breach of an injunction for quieting possession.

Citations:

[1674] EngR 122, (1674) 3 Swans 626, (1674) 36 ER 1000 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Henry Woodward v Edward Earl of Lincoln, Edward Sharp, and John Whalley 1672
The Lessor granted a Lease for 21 Years under a certain yearly Rent, and covenanted to repair and to allow, and pay all Taxes which he did not do in his lifetime; and upon a Bill brought against his Grandson and Heir to make Allowances for Repairs . .

Cited by:

Cited – HM Attorney General v Yaxley-Lennon QBD 9-Jul-2019
Application by Her Majesty’s Attorney General for an order committing the respondent to prison for contempt of court. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contempt of Court

Updated: 23 July 2022; Ref: scu.406121