The tenant sought specific performance of his landlord’s agreement to grant him a lease.
Held: The tenant was in breach of a covenant in the intended lease. Specific performance is discretionary, and a court under equity will require a party seeking an equitable remedy to come with clean hands.
(1886) 55 LSQB 22
Updated: 01 May 2022; Ref: scu.259692
The owner of a block of flats let one to the tenant, but kept the roof and guttering in his own possession and control. The guttering became defective and the landlord failed to remedy it after notice. Rainwater escaped and caused damage to the Claimant.
Held: The landlords were liable for the damage suffered by her.
Bankes LJ referred to a ‘line of authorities to show that a landlord is under an obligation to take reasonable care that the premises retained in his occupation are not in such a condition as to cause damage to the parts demised to others.’
Scrutton LJ, Bankes LJ and Sargant LJ
[1924] 2 KB 119
Applied – Rylands v Fletcher CEC 1865
Mr Fletcher’s Lancashire coal mine was flooded by the water from Mr Rylands’ mill reservoir in 1860-61.
Held: Mr Rylands was responsible. Blackburn J said: ‘We think that the true rule of law is, that the person who for his own purposes brings . .
Cited – Westminster (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 . .
Cited – Jackson v J H Watson Property Investment Ltd QBD 7-Jan-2008
The tenant claimant held under a 125 year lease of the defendant. A fault in a light well led to water ingress and damage. The fault was in the landlord’s land but not the flat. The tenant alleged a nuisance by the landlords. The landlord replied . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259564
Mr Fielder and Miss Maxwell together applied to take a self-contained flat. Each signed an agreement to pay andpound;54.17 per month to share the use of the flat with one other person. The couple moved into the flat and enjoyed exclusive occupation. In terms if the couple parted and Mr Fielder moved out or his agreement was terminated was, the owner could require Miss Maxwell to share her living and sleeping quarters with a stranger or move out herself. They had exclusive occupation unless and until one of their agreements was terminated.
Held: The right resreved by the landlord was contrary to the Rent Acts and was, in the circumstances, a pretence intended only to get round them.
[1978] 37 P and CR 461
Cited – A G Securities v Vaughan; Antoniades v Villiers and Bridger HL 10-Nov-1988
In Antoniades, the two tenants occupied an attic, living together. Each had at the same time signed identical agreements purporting to create licences. The landlord had reserved to himself the right to occupy the property and to allow others to . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259693
A reciprocal obligation may arise and fall on a landlord to repair the structure of a building from the principle that a landlord who takes the benefit of a covenant, for example to pay a specified sum for the cleaning of the demised premises, is under an obligation to accept the corresponding burden.
Judge Fox-Andrews QC
[1994] 3 EG129
Cited – Adami v Lincoln Grange Management Limited CA 17-Dec-1997
No General Duty on Landlord to Repair Structure
The plaintiff was a tenant of an apartment in a block. He appealed a ruling that there was no term implied into his lease imposing on the landlord a duty to maintain the structure of the building. The lease contained service charge provisions, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259561
A weekly tenancy agreement contained an undertaking by the landlord not to give notice to quit until he needed to pull down the demised buildings.
Held: Lush J applied Warner v Browne saying: ‘This reasoning applies with at least equal force to the present case. This is not a mere constructive tenancy as that was. It is as explicit as words can make it that the defendants are to hold ‘upon a weekly tenancy at a weekly rental, and that the tenancy is to be determined by either of the parties on giving a week’s notice to the other.’ There is this difference between the two cases, that in Doe d. Browne v. Warner the lessor engaged not to turn out the tenant so long as he observed the conditions, and in this case Radcliffe engages that the tenant shall hold until the company require to pull down the buildings. But, as that is an event which may never happen, the distinction is merely between the contingency of the tenant breaking the conditions and the contingency of the company wanting the premises in order to pull them down. The restriction is as repugnant to the nature of the tenancy in the one case as is in the other. It is therefore no legal answer to the ejectment to say that the contingency provided for has not happened.’
Lush J
(1880) 50 LJQB 121
England and Wales
Not followed – In re Midland Railway Co’s Agreement, Charles Clay and Sons Ltd v British Railways Board CA 1971
The lease agreement created a term for six months from 10 June 1920 and was to continue from half year to half year until determined. It was to be determined by three months’ written notice given by either party to the other provided that the . .
Cited – Prudential Assurance Co Ltd v London Residuary Body and Others HL 16-Jul-1992
The parties signed a memorandum of agreement to let a strip of land from 1930 until determined as provided, but the only provision was that the lease would continue until the land was needed for road widening and two months’ notice was given. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259627
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 did not enter as squatters.
[1975] 1 WLR 155
Cited – Crancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259695
It was said that the premises had previously been occupied by someone with measles and were therefore not fit for human habitation.
Held: A term of fitness for occupation was implied into a lease of furnished premises at its commencement and meant: ‘that it should be reasonably healthy, and so not dangerous to the life of those inhabiting it.’
Pollock B said that furnished lettings were an exception to the doctrine that rent issues out of the realty and held instead that rent was simply ‘a sum paid for the accommodation afforded by the use of the house’.
Pollock B
(1877) 2 Ex D 336
England and Wales
Applied – Smith v Marrable, Knt 3-Dec-1842
If premises be let for the purposes of occupation, it is on an implied condition that they should be fit for occupation. . .
Cited – Hussain v Mehlman CC 5-Mar-1992
(County Court) The defendant landlord granted the plaintiff a three year assured shorthold tenancy. He now appealed a finding that he was in breach of an implied covenant to maintain the space heating, and otherwise. The tenant had returned the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.258841
A lease of a plot of land fronting a road contained a covenant by the lessor, who was also the owner of land with a hotel on the opposite side of the road, not to build on the hotel site except to a specified extent. Subsequently, the lessee acquired the freehold reversion. The successor to the hotel site brought an action for a declaration that, the lease having been extinguished by merger, the covenant was no longer enforceable.
Held: On the facts there had been merger, and the covenant was accordingly unenforceable. The court rejected the defendant’s argument that ‘though the leases no longer exist a corresponding right to enforce the covenants in equity against the plaintiff remains attached to the houses until the date when the leases would have expired.’ There need be ‘nothing unconscionable’ in a party taking advantage of a conveyancer’s mistake for a neighbour. As to the intention to merge the lease, Cross J said: ‘it is possible, though no doubt unlikely, that (the relevant parties) intended to give up any right to enforce the covenant in the respective leases against the plaintiff, and even if one assumes-which is much more likely-that they did not so intend and that the positive declarations that the lease should merge in the freeholds were inserted per incuriam, there is nothing unconscionable in the plaintiff, who was not concerned in the matter, taking advantage of the faulty conveyancing.’
Cross J
[1965] 2 All ER 506
Distinguished – Birmingham Joint Stock Co v Lea 1877
The court considered whether a covenant in a lease survived its extinction: ‘though the old under-lease was gone it was clearly part of the arrangement that the defendant should remain subject to the covenant and that accordingly he remained bound . .
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.252417
The court considered on what date the increased rent determined by a rent review fell due for payment.
Held: O’Connor LJ refused the appeal: ‘If the parties choose to put into a lease that rent is due on quarter days, then there are good grounds for saying, where arrears arise in this fashion [i.e. retrospectively on the determination of a rent review] that they should not be due until the next following quarter day.’
O’Connor LJ, Oliver LJ
[1984] 1 WLR 710
England and Wales
Applied – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .
Cited – Scottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .
Cited – Scottish and Newcastle Plc v Raguz ChD 11-Apr-2006
The defendant had taken assignments of the term of two underleases from the claimant, and then re-assigned them to a limited company with guarantors of the rent, and they in turn re-assigned the leases. The last company became insolvent. The . .
Cited – Scottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.249877
Lord Redesdale LC
(1800) 2 Sch and Lef 408
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247750
There can be no set-off by a tenant against a distress.
(1818) 3 Madd 203
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247745
The landlord claimed for unpaid rent and the tenant counterclaimed for damages for breach by the landlord of the implied covenant to repair the roof of the premises demised.
Held: The cross-claim was no defence to an action for rent.
Scruton J
[1916] 1 KB 646
Applied – Surplice v Farnsworth 1844
. .
Not followed – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247752
The tenant had created a subletting which would attract the protection of the Rent Act. The landlord sought forfeiture.
Held: The court could envisage circumstances in which it might be unreasonable to refuse consent to an underletting, if the result would be that there was no way in which the tenant (the sublandlord) could reasonably exploit the premises except by creating a tenancy to which the Rent Act protection would apply, and which inevitably would affect the value of the landlord’s reversion.
O’Connor LJ said: ‘It must not be thought that, because the introduction of a Rent Act tenant inevitably has an adverse effect upon the value of the reversion, that that is a sufficient ground for the landlords to say that they can withhold consent and that the court will hold that that is reasonable.’ In this case however it was.
Oliver, O’Connor LJJ
[1984] 2 EGLR 54, (1983) 271 EG 279
Updated: 01 May 2022; Ref: scu.245840
(1996) 28 HLR 241
England and Wales
Updated: 01 May 2022; Ref: scu.245838
Parties had entered an agreement, with a draft lease attached to lease a coal seam. If the company anticipated damage, the lease allowed the company to leave sections unmined as support. The final lease allowed the miners to let down the surface, but now asked the miners to request obtain consent before leaving any coal un-mined. The surface was then also let to the plaintiff on a yearly tenancy. The miners sought consent as agreed, but the consent was withheld, and they proceeded. The surface property was damaged, and the tenant sought damages.
Held: There was an implied covenant for quiet enjoyment in the lease of the house, but the owner of the land who was liable under that covenant could not seek an indemnity from the miner without joining in the trustees who had actually executed the lease.
[1908] 98 LT 605, [1908] 24 LTR 426, [1908] 1 Ch 697, [1908] 77 LJ Ch 451
England and Wales
Updated: 01 May 2022; Ref: scu.246064
The court considered a claim by the landlord that a surety under a lease which had been disclaimed by the liquidator of the tenant company was liable for rent arrears. The surety replied that after the disclaimer, the landlord was obliged to mitigate the loss of rent from the tenant. The landlord had not taken possession nor taken steps to re-let.
Held: ‘However, the landlord cannot be compelled to take possession and, of course, it will not be in his interest to do so if the market rent of the premises is less than the rent payable under the lease, unless possibly he takes the view that his remedy against the surety is unlikely to yield the full amount of the rent.’
Sir John Vinelott
[1999] LTR 59
England and Wales
Cited – Reichman 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.
Updated: 01 May 2022; Ref: scu.245833
The tenants, by being willing to make prostitutes available to customers from the premises, were in a breach of a user covenant which prohibited the use of the premises otherwise than as ‘a high class restaurant/nightclub’. However the fact that the use had already ended, and the damage to the landlord had been reduced, and the substantial loss caused to the tenants, meant that forfeiture was refused.
Millett J said: ‘The mere fact that the breach in question involves immoral user does not in itself preclude the court from granting relief . . It will, however, be only in the rarest and most exceptional circumstances that the court will grant relief in such a case, particularly where the breach of covenant has been both wilful and serious. The defendants’ breaches in the present case were of the utmost gravity; they represented a deliberate and continuing disregard of their obligations under the lease. Despite the weighty considerations which tell against the granting of relief, however, I have come to the conclusion that this is an exceptional case in which relief should be granted.’
Millett J
[1989] 2 EGLR 50
Cited – Patel and Another v K and J Restaurants Ltd and Another CA 28-Oct-2010
The landlord appealed against refusal of forfeiture for breaches of the lease. A covenant provided against use for immoral purposes, and the sub-tenant had been found to be running a brothel. The tenant said that he had been concerned of an action . .
Cited – Patel and Another v K and J Restaurants Ltd and Another CA 28-Oct-2010
The landlord appealed against refusal of forfeiture for breaches of the lease. A covenant provided against use for immoral purposes, and the sub-tenant had been found to be running a brothel. The tenant said that he had been concerned of an action . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245839
Where a tenant has purported to surrender his lease, but has not succeeded, and the tenant changes his situation, the landlord may be estopped from asserting that the lease continues.
Sir Raymond Evershed MR
[1950] 2 All ER 342, [1951] KB 149
England and Wales
Cited – Binions v Evans CA 27-Jan-1972
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245881
When creating a new tenancy after granting relief from forfeiture, the court may adjust the rent.
[1901] 1 Ch 499
Updated: 01 May 2022; Ref: scu.245844
The landlord had let two houses to the same tenant. Each had been converted into flats. The tenant lived in neither house but argued from the 1889 Act, that the singular includes the plural, and that he was a protected tenant within the meaning of section 1(1) of the 1968 Act.
Held: The court dismissed his appeal. In the context of the Act, and bearing in mind the policy of the Rent Acts, the singular did not include the plural; and, accordingly, that neither tenancy was within the definition of a protected tenancy as each of the two houses had been let as a house comprising several dwellings.
Russell LJ said that notwithstanding that the result contended for by the respondent landlord was in his view somewhat anomalous, the weight of authority was in favour of accepting such anomalies and holding that the Interpretation Act 1889 did not apply, and that the singular did not include the plural: ‘As to the first question, the point appears to me to be this: whether the phrase ‘a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling’ embraces a case in which the tenancy includes when created a residential building containing more than one of what might conveniently be described as units of habitation. The question appears to be ultimately whether by force of the Interpretation Act 1889 ‘is let as a . . dwelling’ is to be construed as ‘is let as a . . dwelling or dwellings’. On this point it seems to me immaterial that the houses in question are physically adapted for a great number of units of accommodation: the question really is the same as would arise for solution when on the granting of the tenancy of a house it consisted of two separate self-contained flats.’
Scarman LJ: ‘The letting in each case was of a house comprising more dwellings than one. Was it the letting of a house as a dwelling (both parties agree that the word ‘separate’ is of no importance in this connection)? If [counsel for the tenant] is right that the Interpretation Act 1889 requires us to construe the subsection’s phrase ‘a dwelling’ so that it includes ‘dwellings’, cadit quaestio: each tenancy is protected. But I agree with the county court judge in thinking that Parliament when it enacted section 1(1) used the singular deliberately, and in this instance did not intend the singular to include the plural. The policy of the Rent Acts was and is to protect the tenant in his home, whether the threat be to extort a premium for the grant or renewal of his tenancy, to increase his rent, or to evict him. It is not a policy for the protection of an entrepreneur such as Mr Lambert whose interest is exclusively commercial, that is to say, to obtain from his tenants a greater rental income than the rent he has contracted to pay his landlord. The Rent Acts have throughout their history constituted an interference with contract and property rights for a specific purpose – the redress of the balance of advantage enjoyed in a world of housing shortage by the landlord over those who have to rent their homes. To extend the protection of the Acts to tenancies such as these in this case would be to interfere with contract and property rights beyond the requirements of that purpose.’
Russell and Scarman LJJ and Plowman J
[1976] Ch 39
Interpretation Act 1889, Rent Act 1968 1(1)
England and Wales
Updated: 01 May 2022; Ref: scu.245808
A landlord who seeks an injunction against a tenant for breach of covenant has not thereby made an act unequivocal to found a right of forfeiture.
[1908] 1 Ch 575
England and Wales
Updated: 01 May 2022; Ref: scu.245831
When granting a tenant relief from forfeiture, the court has an equitable discretion as to the order it makes including as to costs, and so as to fill in any gaps left by legislation.
[1985] Ch 190, [1984] 3 All ER 262
Updated: 01 May 2022; Ref: scu.245846
A covenant in a lease for periodic decoration is not a covenant to repair because it will have to be performed even if the property is not in poor decorative repair.
[1942] SASR 55,57
Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245778
The basic measure of damages for breach of the covenant to repair is the reasonable costs of executing the repairs required to fulfil the covenant .
[1934] Ch 298
Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245771
The fact that a subsequent tenant was given a rent free period or was paid a reverse premium to take the premises, could allow a court to infer the extent of damage to the landlord’s reversion caused by the first tenant’s breach of his covenant to repair.
[1995] EGLR 51
Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245773
The general rule at common law is that the measure of damages for breach of the covenant to repair by a tenant is the cost of putting the premises into the state of repair required by the covenant.
[1891] 2 QB 31
Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245770
Tenants set out to purchase the freehold under the Act. The landlord had later granted a lease of the roof-space and of a car park. The tenant under that new lease did not come within section 4(2).
Held: The tenants acquired the freehold free of the lease.
Lady Fox
[1992] 2 EGLR 223
Landlord and Tenant Act 1987 5
England and Wales
Cited – Belvedere Court Management Ltd v Frogmore Developments Ltd CA 24-Oct-1995
Landlords had sold flats to Frogmore without serving a section 5 notice under the 1987 Act. Prior to receipt of a purchase notice, Frogmore granted certain leases in the block of flats to another party.
Held: The agreements were upheld, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245016
It is fundamental for an arbitrator asked to settle a rent to adjudicate on the extent of a land holding in order to decide the amount of that rent. If the Parties could not agree it, then the arbitrator would have to do so. Such preliminary issues fall within his jursdiction even if the terms of the appointment restrict his duties to determination of the rent.
[1965] EGD 236
England and Wales
Cited – Rysaffe Trustee Company (CI) Ltd and Another v Ataghan Ltd and others ChD 8-Aug-2006
Complex family trusts had been created over many years. Various documents were now disputed, and particularly the extent of land demised by a lease, and whether a surender of a lease had occurred. Landslides had disturbed the boundaries of the land. . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245075
The landlord of light industrial premises sought damages from his tenant for breach of the user covenant in the lease. This permitted the premises to be used, inter alia, as an ‘industrial building or structure’ as defined by the Capital Allowances Act 1968. The tenant was in business of purchasing used tyres, storing and inspecting them in the premises to see whether they were suitable for making re-moulds. Those thought to be suitable were then consigned to a re-moulder which would then select and purchase the tyres it wanted. The tenant also sold re-moulded tyres on commission and provided a re-moulding service for some of its customers. Due to the nature of its business, at any one time there would be a large number of tyres stored in the premises awaiting despatch to a re-moulder.
Held: The storage of used tyre casings and re-moulds fell within s.7(1)(f)(ii) and (iii) of the 1968 Act. As to Dale -v-Johnson, the true ratio of that decision was that the storage in that case was no more than ancillary to the company’s trade and that Shiel J did not decide that s.7(1)(f) was only applicable if ‘there is a trade which consists in storage and nothing else’. The words ‘which consists in’ in s.7(1)(f) means he said ‘involves’ .
HH Judge Finlay QC
(1979) 54 TC 246
Explained – Dale (HM Inspector of Taxes) v Johnson Brothers 1951
(Year?) The taxpayer claimed an industrial buildings allowance against his tax liabilities for a warehouse used as storage as a trade in itself. Two thirds of the use was for storage of finished goods awaiting collection or delivery. The taxpayers . .
Wrongly Decided – Revenue and Customs v Maco Door and Window Hardware (Uk) Ltd ChD 19-Jul-2006
The Revenue sought to disallow for industrial buildings allowance sums expended on warehouse premises which were to be used to store window products imported for use in other manufacturing processes.
Held: The Revenue’s appeal succeeded. ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.244454
In an appropriate case, a court will protect a contractual licence to occupy land by injunction or specific performance, where damages would not be an adequate remedy. A decree could issue where there was a wrongful repudiation of the licence, even before the licensee entered into possession.
Roskill LJ said: ‘Since the fusion of law and equity it is the duty of the court to protect where it is appropriate to do so any interest whether it is in estate or land or a licence by injunction or specific performance as the case may be.’
Lord Denning MR said: ‘Since the Winter Garden case, it is clear that once a man has entered under his contract of licence, he cannot be turned out. An injunction can be obtained against the licensor to prevent his being turned out . . So I hold that the observations in Thompson v Park are no longer good law. I agree with what Megarry J said about them in London Borough of Hounslow v. Twickenham Garden Developments Ltd.’
Roskill LJ, Denning MR, Cumming-Bruce LJ
[1980] 1 All ER 839
England and Wales
Cited – Winter Garden Theatre (London) Ltd v Millennium Productions Ltd HL 1947
The appellant owner had granted licences to the respondent to use the theatre for productions. After the initial six month’s period, the respondent was to have an option for further licences. The contract made no mention of a termination of that . .
Disapproved – Thompson v Park 1944
Goddard LJ rejected a submission regarding recovery of pssession after a forced entry, saying: ‘Having got back into the house, . . with strong hand and with multitude of people, he has established himself in the house, and he then says : ‘I ought . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.241596
Consideration for an agreement need not take a monetary form. As to section 2, Cross J said: ‘After all, one of the objects of the Act of 1948, as I understand the matter, was to give security of tenure to those actually farming that land, so that they should not be tempted to take the last halfpenny of profit out of it during the period for which they had a contractual right to remain in occupation, without regard to its future welfare after the date when they were liable to be turned out.’
Cross J
[1966] 1 WLR 1254
Agricultural Holdings Act 1948 2
England and Wales
Updated: 01 May 2022; Ref: scu.241598
Buildings were let for a term of 17 years. The tenant had the right to terminate the lease after the first five or ten years of the term if it gave notice to that effect and if it ‘shall up to the time of determination . . perform and observe the covenants . . but without prejudice to the remedies of either party against the other in respect of any antecedent claim or breach of covenant’. The tenant gave his notice to terminate, admitting some want of repair at the time he gave notice.
Held: At the time the notice expired the covenants had been duly performed. The issues were whether compliance was required at the time the notice was given as well as at its expiry and whether the provision was a condition precedent notwithstanding the concluding words. As to the first, the answer was no, and as to the second, yes, and: ‘That clause is in an exceedingly familiar form. Such a form – or one so closely resembling it as to be practically indistinguishable – has been in common use for more than a century past. It has been before the Court many times, and it would be dangerous to depart a hair’s breadth from decisions upon it in former cases.’
Clauson J
[1931] 1 Ch 379
Cited – Bass Holdings Ltd v Morton Music Ltd CA 1987
The tenant had the option to take a further lease on giving written notice of their desire ‘if it shall have . . performed and observed the several stipulations on its part to be performed and observed up to the date of [the notice]’. The question . .
Cited – Fitzroy House Epworth Street (No. 1) Ltd and Another v Financial Times Ltd CA 31-Mar-2006
The defendant tenant sought to exercise a break clause in the lease. The landlord said that the notice was deficient because the tenant had failed ‘materially to comply with’ its repairing obligations. The judge found the cost of repairs were . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.240010
A tenant sought a right to ventilation enjoyed by land let to a tenant. It was argued that there could be no implied easement over adjoining property of a lessor where the adjoining property was already let out. It would be an easement in reversion.
Held: The court avoided a decision on the point by resort to the doctrine of non-derogation from grant, which prevented the lessor and his successors from interfering with the lessee’s use of the dominant land after the lease of the servient land had fallen in.
Neville J
[1908] 1 Ch 259
England and Wales
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.239386
The lease conferred on the tenant a right to break the leases on notice ‘if the tenant shall perform and observe all the covenants and obligations herein on the tenant’s part contained’. It had failed to repaint the premises during the year before the exercise of the clause. Counsel for the tenant submitted that the condition precedent should be regarded as satisfied unless at the relevant date there were breaches of covenant for which substantial damages would be recoverable (relying on Bass Holdings).
Held: The submission was rejected. The failure was fatal to the tenant’s exercise of his rights under the lease. Scott LJ: ‘There is no authority that permits the court to rewrite the condition precedent so as to exclude from account a subsisting breach on the ground that only nominal damages are recoverable.’ and ‘The court is not entitled to rewrite that covenant [to paint the premises in the last year of the term] or to presume to inform Mr Ripley that the breach of the covenant was only trivial and should be ignored for the purposes of the condition precedent.’
Scott LJ, Sir Michael Kerr and Parker LJ
(1993) 65 PandCR 220, [1992] 2 EGLR 47
England and Wales
Cited – Bass Holdings Ltd v Morton Music Ltd CA 1987
The tenant had the option to take a further lease on giving written notice of their desire ‘if it shall have . . performed and observed the several stipulations on its part to be performed and observed up to the date of [the notice]’. The question . .
Cited – Littman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
Cited – Fitzroy House Epworth Street (No. 1) Ltd and Another v Financial Times Ltd CA 31-Mar-2006
The defendant tenant sought to exercise a break clause in the lease. The landlord said that the notice was deficient because the tenant had failed ‘materially to comply with’ its repairing obligations. The judge found the cost of repairs were . .
Cited – Legal and General Assurance Society Ltd v Expeditors International (Uk) Ltd CA 24-Jan-2007
Leases contained break clauses which the tenant purported to exercise. The landlord replied that they were ineffective because the tenant had not complied with his repair covenants. The dispute appeared settled after negotiations, and the settlement . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.236553
The court considered whether under a repairing covenant a wooden door should be replaced with a self-sealing aluminium door.
Held: The replacement came within a repairing covenant as a sensible way to deal with a persisting problem.
Sir John Arnold, President, and Stocker LJ
(1987) 54 P and CR 193
Cited – Eyre and others v McCracken CA 10-Mar-2000
The court considered the tenant’s covenant to repair in the context of a need for a damp course: ‘I have regard to the age, (over 150 years) and the design of the building. It has no damp-proof course . . I bear in mind the limited interest of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.235460
An irritancy clause taking effect on the sequestration of a tenant was lawful and, in contradistinction to a legal irritancy, could not be purged.
(1864) 2 M 1414
Cited – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234728
The lease contained a covenant by the lessee not to ‘part with or share the possession or occupation [of the demised premises] or of any part thereof’.
Held: The lessee had ‘retained the legal possession of the whole of the premises’ and therefore had not committed any ‘breach of covenant against parting with possession’. However, what the lessee had done ‘amounted to a sharing of the possession of part of the demised premises’.
Romer J
[1923] 1 Ch 373
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234409
The court considered the ability of a tenant to obtain relief from forfeiture for illegal or immoral use where the tenant was not aware of the breach by his sub-tenant until he received the section 146 notice. Where the tenant took prompt action to limit or prevent damage to the landlord’s reputation, relief from forfeiture might be given. The section 146 notice did not allow for the breach to be remedied. Paull J reviewed the case law on whether a breach such as that alleged in the case before him was capable of remedy, and said: ‘Having considered these authorities to which I have referred, I think the following propositions may be stated: (1) The mere fact that the breach complained of is a breach of user by a subtenant contrary to a covenant in the lease does not render the breach incapable of remedy. If one of the tenants of these flats in Queensway had, unknown to the defendants, carried on a small business of dressmaking in the flats, I would hold without hesitation that the breach was capable of remedy so far as the defendants are concerned, but it may be that the remedy would have to consist not only of stopping the tenant from carrying on that business but of bringing an action for forfeiture, it being then left to the court to decide whether the particular tenant should be granted relief. (2) The fact that the business user involves immorality does not in itself render the breach incapable of remedy, provided that the lessees neither knew of nor had any reason to know of the fact that the flat was being so used. The remedy in such a case, however, must involve not only that immediate steps are taken to stop such a user so soon as the user is known, but that an action for forfeiture of the sub-tenant’s lease must be started within a reasonable time. If therefore the lessee has known of such a breach for a reasonable time before the notice is served, the breach is incapable of remedy unless such steps have been taken. (3) It does not follow that such a breach is always capable of remedy. All the circumstances must be taken into consideration. For example, if the notice is not the first notice which has had to be served, or if there are particularly revolting circumstances attaching to the user, or great publicity, then it might well be that the slate could not be wiped clean, or, to use another phrase, the damage to the property might be so great as to render the breach incapable of remedy.’
The breach of the lease was capable of remedy, and had been remedied within a reasonable time: ‘It is true that the user for prostitution took place either during two periods or for one lengthy period, but there was no fault on the part of the tenant and no general publicity – only publicity to those who chose to follow up the advertisements which did not give the address. Again, had the prostitutes refused to leave, the length of time before the defendants issued their writ against Dean would have been unreasonably long, but the premises were empty and were seen to be empty by anyone coming to the premises, not only by their appearance but also by reason of a ‘Notice of Sale’ exhibited on the premises.’
Paull J
[1966] 1 QB 611
Cited – Rugby School (Governors) v Tannahill CA 1935
The tenant had been convicted of permitting the premises in Great Ormond Street to be used for habitual prostitution. The landlord served a notice under section 146 which did not provide for the possibility of the breach being remedied. The evidence . .
Cited – Borthwick-Norton v Romney Warwick Estates Ltd 1950
Relief against forfeiture is not to be exercised in favour of tenants who suffer the premises to be used as a brothel. . .
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Cited – Patel and Another v K and J Restaurants Ltd and Another CA 28-Oct-2010
The landlord appealed against refusal of forfeiture for breaches of the lease. A covenant provided against use for immoral purposes, and the sub-tenant had been found to be running a brothel. The tenant said that he had been concerned of an action . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234425
It is possible for a lessee to permit a company, in which he has an interest, to occupy the demised premises for the purpose of its business, without parting with possession of those premises to that company.
[1926] 1 KB 198
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234410
An alienation provision such as the clause ‘Not to charge assign equitably assign underlet or part with possession of a part of the demised premises nor to hold the whole or any part of the demised premises on trust for another nor to share possession of the whole or any part of the demised premises nor to part with possession of the whole of the demised premises (except as hereinafter permitted) all of which are expressly prohibited.’ is, when properly analysed, in fact a series of separate covenants wrapped up together in a single clause.
Browne-Wilkinson J
[1979] 1 All ER 29
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234411
The Board considered an alleged breach of a covenant against assignment in a lease.
Held: The transfer to a newly formed company of the partnership business being conducted on the premises was a parting with possession. ‘A covenant which forbids a parting with possession is not broken by a lessee who in law retains the possession even though he allows another to use and occupy the premises.’ and ‘the words of the covenant must be strictly construed, since if the covenant is broken a forfeiture may result’.
[1975] AC 247
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Cited – Clarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234407
The enforcement of an irritancy clause in an agricultural lease had deprived the tenants of all property in the crops growing at the time when the leases were terminated.
1909 SC 761
Cited – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234727
The lessee had given a covenant not to share occupation of the premises. He was claimed to be in breach of the covenant: ‘In a strict legal sense the word ‘possession’ has a highly technical meaning, and the sharing of possession is an unknown concept. It has been said that a possession is single and indivisible. So when you get what might be termed a sharing of possession, the two sharers become one, as, say, joint tenants and one is back to the original concept. But ‘possession’ also has a broader popular meaning, and it means the sharing of the use or occupation.’ Rather than giving the word ‘possession’ in the covenant its strict legal meaning, with the result that the covenant against sharing possession would have no effect, it would be right to construe the covenant as precluding the sharing of occupation.
Sir Douglas Frank
[1981] 2 EGLR 55
England and Wales
Wrongly decided – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234408
The court distinguished between the carrying on of a trade or business and the sale of particular items within that trade or business even though those items might themselves be properly sold by another trade or business.
McNair J
[1956] 1 WLR 522
Cited – 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.
Updated: 30 April 2022; Ref: scu.231053
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 in favour of the tenant in the case of doubt.
Knox J
[1992] 1 EGLR 123
Cited – 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 . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.231049
‘When a lessee commits a breach of covenant on which the lessor has a right of re-entry, he may elect to avoid or not to avoid the lease, and he may do so by deed or by word. If in that notice he says, under circumstances which bind him that he will not avoid the lease, or he does an act inconsistent with his avoiding as distraining the rent or demanding subsequent rent, he elects to not avoid the lease.’
Bramwell B
(1858) 6 HL Cas 672
England and Wales
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.230298
CS Stephenson LJ said: ‘I would . . regard the expropriatory nature of the 1967 Act as of little weight in construing its provisions . .’
Stephenson LJ
[1981] 2 All ER 40
England and Wales
Cited – Cadogan v McGirk CA 25-Apr-1996
The court considered whether the 1993 Act should be construed as expropriatory legislation and therefore was to be read strictly.
Held: The Court rejected the submission that the relevant provisions must be strictly construed because the 1993 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.229815
The right of deduction and set off under a lease was ‘essentially an act of self-help’.
Robert Goff J
[1981] 1 Lloyds Rep 18
England and Wales
Cited – Altonwood Ltd v Crystal Palace FC (2000) Ltd ChD 7-Mar-2005
The landlord claimed arrears of rent and other payments due under the lease of the football ground occupied by the club. A licence had been granted for the accomodation to be shared with Wimbledon Football Club. The rent varied with the gate . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223838
[1928] TLR 249
Cited – Orlando Investments v Grosvenor Estate Belgravia 1989
The lease contained a tenant’s covenant to repair, and not to assign without the landlord’s consent, such consent not to be unreasonably withheld. T, himself an assignee, and therefore not liable on the covenant after assignment, sought consent from . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223969
The lease contained a tenant’s covenant to repair, and not to assign without the landlord’s consent, such consent not to be unreasonably withheld. T, himself an assignee, and therefore not liable on the covenant after assignment, sought consent from the landlord to assign to A who promised to complete the works of repair. The landlord refused consent.
Held: The landlord had not acted unreasonably, and the appeal failed. Failures by the assignee to provide a schedule of works was not relevant since the only matters which could be taken into account were those applicable at the time the landlord made his decision. However the judge had been correct to say that the landlord was entitled to evidence of the assignee’s capacity to do the work, and that since the landlord would refuse consent to merge the property with A’s existing neighbouring property A would be likely just to sell on the lease.
[1989] 43 EG 175
Applied – 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 . .
Considered – 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. . .
Cited – Farr v Gillings 1928
. .
Considered – Goldstein v Sanders 1915
. .
Considered – Bromley Park Garden Estates Ltd v Moss CA 1982
When considering whether to give consent to an assignment of a lease, the landlord need consider only his own interests.
Slade LJ said: ‘I find it rather more surprising that, when the landlords came subsequently to question the validity of . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223968
It was not possible in Scottish law for a man to grant a lease to a nominee for himself: (Lord Hope) ‘I have, as I have said, no difficulty in the concept by which the title to property and the beneficial interest are separated, the title being held by a nominee. There is no reason to doubt the efficacy of this arrangement where the property in question has some independent existence of its own… But I know of no case, and none was cited to us, where it has been held that a nominee may contract with his principal so as to create new rights and obligations involving no third party whatever which are to be held only upon his principal’s behalf. That seems to me to conflict with the principle that a man cannot contract with himself…. ‘ and ‘The whole basis of a contractual obligation is the agreement of two or more parties as to the act or thing to be done. This is as true of a lease as it is of any other kind of contract. It is impossible to conceive of a lease by a man in his own favour. The essence of a lease lies in the tenant’s right to exclusive possession of the subject let, and the landlord’s obligation to put and maintain him in that possession. I do not see how a man can contract with his own nominee to the effect that his own nominee is to be entitled to that exclusive possession against himself, this to be held for his own behoof. The truth of the matter is that the separate interests of landlord and tenant are incapable of creation by such an arrangement’ Lord Clyde: ‘But where the same person is both debtor and creditor in the same matter there can be no obligation created. It is in my view ineffective to enter into a contract with continuing mutual rights and obligations with oneself and it is whimsical to grant a lease of one’s own property to oneself (see Grey v Ellison ((1856) 1 Giff 438, 65 ER 990)). To attempt to grant a lease to a nominee for oneself seems to me a similarly barren exercise’. Lord Sutherland: ‘A contract of lease…involves the creation of mutual rights and obligations which can only be given any meaning if the contract is between two independent parties. [The nominees] had no interest of their own to enter into such a contract, any rights and obligations accruing thereunder being exercisable only as nominees for [the principals]. Under a normal lease the landlords cede occupation of the property to the tenants in return for certain obligations, but if the tenants are in fact mere nominees of the landlords the whole lease becomes a pure fiction. Accordingly, in the special circumstances of this case I am of the opinion that the purported lease is not a contract to which the law can give effect and must be treated as a nullity.’
Lord President (Lord Hope) and Lords Sutherland and Clyde
[1990] STC 657
Cited – Henderson v Astwood PC 1894
A sale was undertaken by a mortgagee, ostensibly to a third party but in reality to his nominee. The land was conveyed by the mortgagee to his nominee, who executed a declaration that he held the land in trust for the mortgagee, and who subsequently . .
Cited – Greyv Ellison 1856
A policy of insurance was created in which one department of an insurance company purported to effect a contract with another department of the same company. Although different individuals were parties to the contract, they all contracted as agents . .
Cited – Ingram and Another v Inland Revenue Commissioners ChD 23-May-1995
Lady Ingram had first conveyed properties to her solicitor who on the next day let the properties back to her, and on the day after conveyed the freehold of the properties to her family.
Held: The leases in favour of Lady Ingram, having been . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998
To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
Held: The lease-back by the nominee was not void as . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223755
A covenant by one person with himself and other was senseless.
Pollock CB
(1848) 2 Exch 597, [1848] EngR 602, (1848) 2 Exch 5958, (1848) 154 ER 628, [1848] EngR 544 (A), (1848) 16 Sim 250
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223766
The court considered events where a vendor of leasehold land had failed to maintain the insurance pending completion, and in breach of the lease: ‘It is, in fact, the duty of the vendor so to act that nothing done by him prior to the completion of the contract shall constitute a forfeiture of the lease. The policy of insurance not having in this case been kept up till the completion of the contract, so rendering the property liable to a forfeiture, that was not done by the vendors that which they should have done, and therefore, I think, the purchaser ought to be discharged from his contract.’
(1856) 25 LJ Ch 841
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223747
The tenants were given an option in the lease to purchase the freehold: ‘if . . the lessees . . should give three months notice . . and should at the expiration of such notice pay . .’,
Held: Time was of the essence: ‘I apprehend the rule of law applicable to cases like the present is perfectly clear. No doubt, if an owner of land and an intending purchaser enter into a contract constituting between them the relation of vendor and purchaser, and there is a stipulation in the contract that the purchase-money shall be paid and the contract completed on a certain day, this Court in ordinary cases has established the principle that time is not of the essence of the contract, and that the circumstance of the day fixed for the payment of the money and completion of the purchase being past does not entitle either party to refuse to complete. On the other hand it is well settled that where there is a contract between the owner of land and another person, that if such person shall do a specified act, then he (the owner) will convey the land to him in fee; the relation of vendor and purchaser does not exist between the parties unless and until the act has been done as specified. The Court regards it as the case of a condition on the performance of which the party performing it is entitled to a certain benefit; but in order to obtain such benefit he must perform the condition strictly. Therefore, if there be a day fixed for its performance, the lapse of that day without its being performed prevents him from claiming the benefit.’
Sir Richard Kindersley V-C
(1864) 2 Drew and Sm 278
Cited – Haugland Tankers As v RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As ComC 9-Mar-2005
An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid.
Held: The exercise of an option had to be in the precise terms set out in the contract. . .
Cited – Di Luca v Juraise (Springs) Limited; Amess and Amess CA 6-Oct-1997
In regard to options for the purchase of land, time constraints are of the essence. An option is not a contract but an irrevocable offer that matures into a bilateral contract upon due exercise of the option during the option term . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223443
A lease by parol for less than three years from the making of it and stated to take effect at a future day are not within the Statute of Frauds: ‘In Middlesex, coram Raymond, Chief Justice.
Leases by parol for less than three years from the making, to commence at a future day, are not within Statute of Frauds . . .
The plaintiff declares, that 24 February 1723, she demised to the defendant a chamber, a cellar, and half a shop, habendum from LadyDay then next for a quarter of a year, and so from quarter to quarter, so long as both parties shall please, at 51. per quarter.
It was objected by Whitaker, that this being to commence at a future day, was but a lease at will since the Statute of Frauds. The Chief Justice at first thought it a good objection, but upon farther consideration he was of opinion, that the exception was not confined to leases that were to commence from the time of making, but was general as to all leases that were not to hold for above three years from the making. So the plaintiff had a verdict ‘
Raymond CJ
(1725) 1 Stra 651, Bull NP 177, 93 ER 760
Criticised – Inman v Stamp 1815
. .
Approved – Edge v Strafford CExc 1831
The case of Ryley v Hicks was not overruled by Inman v Stamp. Rylet stood as good authority that ‘a lease, though it were to commence in futuro, would be within the exception in the statute of frauds, if it did not exceed three years from the . .
Still good law – Long v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223188
The enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlords.
[1868] 4 Ch App 133
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.222579
A landlord could properly refuse to consent to the assignment of a lease back to an original tenant in circumstances where the parties accepted that, if there was a re-assignment, the original tenant could exercise a right conferred on it alone as tenant to determine the lease. The clause read:- ‘If the Tenant (meaning only ICI Petroleum Ltd) shall desire to determine the term at the expiration of the tenth year thereof, and of such desire, shall give to the Landlord more than twelve months notice in writing …’ It was common ground that the break clause could be exercised by the original tenant on reassignment of the lease back to him.
Held: The court doubted that this was correct. If it had been intended that the original tenant should be able to exercise the break clause after re-assignment to it, clause 5(13) would have been drafted in different terms: ‘One asks oneself why the right conferred by the break clause was made personal to Enterprise. There is no obvious answer to this. There could perhaps be a certain commercial logic in confining the right to Enterprise so long as Enterprise throughout remains the tenant. Enterprise could pull out after ten years if it wished. But if, meanwhile, Enterprise chose to realise its investment by disposing of its entire interest by assignment then its right to withdraw would lapse. However, neither party contended before us that Enterprise’s right is so confined. Quite what is the commercial rationale which would revive Enterprise’s right to terminate if, having assigned the lease, it takes a re-assignment, is not apparent on the material before us. Be that as it may, what is clear is that, had the intention been that at any time Enterprise was to have the right to end its liabilities on the lines now being contended for, clause 5(13) would not have been drafted in the form which the parties chose.’
Sir Donald Nicholls VC
[1994] 2 EGLR 48
England and Wales
Cited – BP Oil UK Ltd and others v Lloyds TSB Bank Plc CA 21-Dec-2004
An option was granted to three lessees for the purchase of the reversion. After one ceased to be a lessee, the remaining two purported to exercise the option. The landlord said that only the three could exercise the option together.
Held: The . .
Cited – JBW Group Ltd v Westminster City Council CA 12-Mar-2010
The tenant had applied to the landlord for consent to assign certain leases. The court had declared the right to exercise break clauses in certain leases as lost. The court had found the right to be lost after the assignment of the leases by the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.222562
Lessors claimed for arrears of rent, forfeiture of the lease and possession of the premises. The lessee admitted the arrears, advanced no defence and did not seek an adjournment. The judge, of his own motion, adjourned the hearing because the lessee, although without means at the time, had an expectation of receiving certain monies under a trust of an uncertain amount at an uncertain date. The hearing was resumed at the adjourned date, and the judge adjourned it for a second time. The lessors applied for an order of mandamus requiring the judge to hear and determine the claim.
Held: The judge had been entitled to adjourn the action under the section, on the first occasion, but not on the second. The word ‘shall’ required the judge to proceed forthwith to judgment for a plaintiff who had without doubt established his claim to relief under the section. Nevertheless, the judge was entitled to adjourn the claim provided that he was acting ‘judicially’. On the facts of that case, in adjourning the claim on the first occasion, the judge was acting judicially: ‘The view that I have formed is that, paying particular regard to section 191 of the County Courts Act 1959, the judge cannot be criticised for taking it into his own hands on the first occasion to adjourn the matter on the basis that he was not then in a position to be able to decide with any degree of accuracy the time which he would give to the lessee to fulfil the term relating to the rent, having regard to the additional factor that he could not impose a term of less than 28 days anyway’ and ‘the allowance of time is a discretionary matter’, although this did not diminish the force of the use of the word ‘shall’ in the section. For this reason: ‘I do not believe that a judge can inevitably be criticised for not proceeding to judgment forthwith, for example, on the first occasion when the matter comes before him if something of materiality remains uncertain as a matter of evidence. To adjourn a case on virtually the same ground again is, however, I think impermissible. A judge, faced with the problems which confronted the judge here, should act strictly in accordance with the law as laid down in section 191 and give the plaintiff the relief which he seeks.’
Watkins J
(1976) 33 P and CR 423
Cited – North British Housing Association Ltd v Matthews, Same v Others CA 21-Dec-2004
In each case the tenants requested adjournment of the possession proceedings brought against them by the landlord for arrears of rent to allow them time to bring the arrears below the level at which a possession order could be made. In each case it . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.221437
Planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of the residential part of the block to office use. That application was refused. The resulting appeal was dismissed by the Secretary of State. At first instance Willis J. quashed the decision, following Granada on the basis that the desirability of retaining the existing housing use was an immaterial consideration.
Held: This approach was wrong, Sir David Cairns: ‘The fact that the refusal of planning permission for a change of use cannot ensure that a current use which is a permitted use will continue was as already indicated the ground of the refusal of planning permission in the case of the Dartford cinema. It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application to change of use cannot ensure that permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty’.
Sir David Cairns
[1977] 1 WLR 926
England and Wales
Cited – Regina (Westminster City Council) v British Waterways Board HL 1985
The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not . .
Cited – London Residuary Body v Lambeth London Borough Council HL 1990
Planning battles had raged over the use of the former GLC County Hall. The question was whether it was desirable and appropriate to retain use of part of the building for London Government offices and centred on the ‘competing needs’ test.
Cited – London Residuary Body v Lambeth London Borough Council HL 1990
Planning battles had raged over the use of the former GLC County Hall. The question was whether it was desirable and appropriate to retain use of part of the building for London Government offices and centred on the ‘competing needs’ test.
Cited – Christchurch Borough Council v Secretary of State for the Environment CA 16-Dec-1993
The council appealed against the inspector’s decision to grant permission to a construction company to build houses on land. The land had formerly been used as a school playing field and was now surplus to requirements. The Council wished to put the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.219456
The lease contained a clause where the rent was to be set according to the ‘gross amount of the total sales’ of the tenant. The tenant argued that this figure did not include the VAT charged on sales, the landlord argued that it was the total sums paid by purchasers.
Held: The words were not plain and unambiguous. The commercial purpose was to ensure that the rent reflected the trading conditions, and that both parties shared the risks and returns of trading. To include VAT would not give a true and fair picture of the tenant’s profit and loss, and VAT was to be excluded from the calculation.
Etherton J
Times 11-Nov-2004
Appeal from – Debenhams Retail Plc and Another v Sun Alliance and London Assurance Company Ltd CA 20-Jul-2005
The landlord appealed against a decision that VAT was not to be included when calculating a rent based upon the turnover in the premises, when it had been expressed to include purchase taxes.
Held: The appeal succeeded: ‘it would be wrong to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.219515
On the renewal of a lease, the landlord asked that the tenant be required to provide an authorised guarantor. The tenant proposed one be required only where it was reasonable to do so.
Held: The tenant’s proposal was preferred.
[2000] EGCS 45
Updated: 30 April 2022; Ref: scu.218824
On a statutory renewal under the 1954 Act, the court would not impose a requirement on the tenant to pay the landlord’s costs so far as this would contravene the intention of the 1958 Act. The tenant may also be required to provide a guarantor.
[1984] 1 All ER 315
Landlord and Tenant Act 1954, Costs of Leases Act 1958
Updated: 30 April 2022; Ref: scu.218825
The lease required a rent review to exclude from consideration any rent free or concessionary period. The valuer took this to mean a ‘head-line’ rent with no discounts for any inducements which might have applied.
Held: The tenant’s appeal was dismissed. The literal effect of the words had to be followed. Any new rental was to assume that a rent free period had expired.
Morgan J
[1994] 24 EG 156
Updated: 30 April 2022; Ref: scu.218822
The tenant had taken the lease in his own, name and later incorporated the business. He sought a new tenancy.
Held: The company occupied the premises, not the claimant, and he was not entitled to a new lease.
[1987] 2 EGLR 91
Updated: 30 April 2022; Ref: scu.216553
The landlord said he resisted the grant of a new lease saying that he wanted to occupy the premises himself for his own business. He was also shown to have an untention to demolish the building.
Held: An intention to demolish was inconsistent with an intention to occupy the premises for the landlord’s own business.
[1959] 1 WLR 273
Landlord and Tenant Act 1954 30(1)(g)
Updated: 30 April 2022; Ref: scu.216667
In a shopping centre, a tenant and its customers had acquired the right under s62 of the 1925 Act to use the concourse. The tenant was therefore entitled to an injunction to prevent the landlord further developing the concourse in such a way as to infringe those rights.
[1993] EGCS 120
Landlord and Tenant Act 1954, Law of Property Act 1925 62
Updated: 30 April 2022; Ref: scu.217911
Under an earlier lease, the tenant had erected an extension and storage building. There had been no obligation to do so. In the subsequent lease, the rent came to be reviewed.
Held: The improvements carried out under the previous lease were not improvements under the current lease, and could not be disregarded.
John Mowbray QC
(1987) 282 EG 594
Cited – Brett v Brett Essex Golf Club CA 1986
Land was let for use as a golf course. In the first term, the tenant erected a club house and laid the course. A subsequent lease extended the term and expanded the area to include a neighbouring 9 hole course, and included a rent review clause . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.217914
After a fire, the premises were unusable for two years. The tenant continued to assert his right of occupation, and wanted to return to occupation as soon as the premises were re-instated.
Held: The tenant had remained in occupation for the purposes of the 1954 Act.
[1998] EGCS 169
Landlord and Tenant Act 1954 23
Updated: 30 April 2022; Ref: scu.216548
Where there were two competent landlords under the Act, one was not able alone to serve an effective notice under the Act. The notice had to relate to all the property let by the lease.
Goff J
[1975] 2 All ER 497, [1975] 1 WLR 781
Updated: 30 April 2022; Ref: scu.216628
On the renewal of the tenancy under the 1954 Act, the landlord applied to have an interim rent fixed.
Held: The interim rent in this case should be set at 100% of the full market rent, because the tenancy had continued for a long time on the contractual basis.
[1992] 42 EG 156
Updated: 30 April 2022; Ref: scu.216650
The landlord resisted the exercise of a break clause saying that the entire premises had not been vacated. The difference was as to whether mere vacation was enough, or whether the tenant had to do some further positive act. The tenant had left assorted security fixtures and maintained security guards.
Held: The tenant had done all that was necessary to make clear his intention to vacate the premises. What was left did nothing to prevent the landlord retaking occupation.
The claimant took a commercial lease from the defendant’s predecessors. It requested a declaration that it had validly exercised a break clause. The freeholder said the lease continued since the tenant had not given full possession, not having carried out any overt act such as returning keys.
Held: The lease had been broken. The defendant’s position was artificial. The fact that the claimant had maintained security on the premises was not a denial to the landlord of possession. In the absence of any explicit form being specified, the court must look objectively at events and decide whether the person asserting termination had manifested its intention clearly, and whether the landlord could retake possession without difficulty or objection. The tenant’s notice complied with the lease and it had done everything necessary.
Robert Hildyard QC said: ‘The fact of retention of keys (or the failure to return them) may be significant but, equally, it may not be. All it may signify is . . an oversight or a desire to protect the premises both for the benefit of the [landlord] and in case the [tenant] might be found still to be liable, without in any way signifying any assertion of rights in respect of the property or being inconsistent with an effective termination of such rights.’
Mr Robert Hildyard QC
[2004] 17 EG 128, Gazette 22-Apr-2004, [2004] 2 EGLR 128
England and Wales
Cited – Cannan v Hartley 1850
. .
Cited – Gray v Bompas 1862
. .
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 – 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 – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Disagreed with – Jones v London Borough of Merton CA 16-Jun-2008
The court was asked ‘If a former secure tenant of a dwelling-house who has become a ‘tolerated trespasser’ in it decides to cease to occupy it, does his liability to pay mesne profits to his former landlord in respect of the dwelling-house cease . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.200443
A headlessee can be a ‘qualifying tenant’ for the purposes of Chapters 1 and 2 of Part 1 of the 1993 Act.
[1998] 2 EGLR 96
Leasehold Reform, Housing and Urban Development Act 1993 101(3)
Cited – Earl Cadogan, Cadogan Estates Limited v Search Guarantees Plc CA 27-Jul-2004
The tenant of a house had subdivided it and let off the flats. He sought to acquire the freehold.
Held: Where none of the subtenants themselves had qualifying leases, the head tenant could be in sufficient occupation to be able to buy the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.200242
[1940] 3 All ER 522
England and Wales
Cited – In Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another HL 4-Feb-1999
The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.197014
A head landlord does not have any title to enforce the provisions of a sub-lease.
(1831) 5 Wilson and Shaw 771
England and Wales
Cited – Sears Properties Netherlands Bv v Coal Pension Properties Limited SCS 11-Apr-2000
. .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.196002
A landlord, having forfeited the lease could not recover for damage to the property caused by third parties before possession was finally given. The election to forfeit was unequivocal, and damages were irrecoverable from the date of service of the writ.
[1984] 2 EGLR 76, (1984) 272 EG
England and Wales
Cited – Wheeler -v Keeble 1914
. .
Cited – Canas Property Co v K L Television Services CA 1970
The rent under the lease was payable in advance on the usual quarter days and the landlord forfeited the lease by serving a writ ‘for instance on 25 April’.
Held: At common law on the breach of a covenant by a lessee, a lessor is entitled to . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.194931
The court was able to imply from a provision in a lease obliging the tenant to pay to the landlords ‘the cost . . of painting in a workmanlike manner every third year of the term all outside wood and metal work and other external parts of the demised premises’ a matching obligation on the landlords to do the repairs paid for.
McNair J
(1962) 60 LGR 124
England and Wales
Distinguished – Tennant Radiant Heat Ltd v Warrington Development Corporation 1988
A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that . .
Cited – Westminster (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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.194602
The tenant under a business lease served notice of his desire to carry out improvements. The landlord objected saying he would do them himself. The tenant withdrew his notice. The landlord did not go ahead.
Held: The tenant having withdrawn his notice the landlord could enforce a right of entry himself to carry out the works. The words of the section should be read in their natural meaning. The proviso implied only that the tenant was unable to carry out the works once the landlord gave his counter-notice. It did not create a right in the landlord to carry out the work.
Etherton J
Times 12-Mar-2004
Landlord and Tenant Act 1927 3
England and Wales
Updated: 29 April 2022; Ref: scu.194668
A tenanted farmhouse was burned down by accident.
Held: The landlord had no obligation to rebuild.
(1815) 3 Dow 233, (1815) 3 ER 1049
England and Wales
Updated: 29 April 2022; Ref: scu.188594
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. After the expiry of the maximum period of four months, when it was too late for the tenant to apply, the landlord’s solicitors informed the tenant that it would make a preliminary objection at the hearing that the tenant’s application was invalid.
Held: The time limit was procedural or technical, not one of jurisdiction, and as such the landlord could waive the breach. The landlord had done so. The task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. The question was treated as a question of statutory construction: was it the intention of Parliament to preclude the parties from agreeing that a notice given by one of them to the other should have effect even though the statutory requirements were not satisfied? ‘And apart from this distinctive feature of this particular statute, where in any Act which merely regulates the rights and obligations of private parties inter se requirements to be complied with by one of those parties are imposed for the sole benefit of the other party it would be inconsistent with their purpose if the party intended to be benefited were not entitled to dispense with the other party’s compliance in circumstances where it as in his own interest to do so . . Upon the purposive approach to statutory construction this is the reason why in a statute of this character a procedural requirement imposed for the benefit or protection of one party alone is construed as subject to the implied exception that it can be ‘waived’ by the party for whose benefit it is imposed even though the statute states the requirement in unqualified and unequivocal words. In this context ‘waived’ means that the party has chosen not to rely upon the non-compliance of the other party with the requirement, or has disentitled himself from relying upon it either by agreeing with the other party not to do so or because he has so conducted himself that it would not be fair to allow him to rely upon the non-compliance.’
Waiver is far from a precise term of art. It was used in a wider sense of a deliberate decision by a party not to stand on his strict rights, by not taking a technical point as to the validity of a notice.
Lord Diplock, Viscount Dilhorne
[1971] AC 850, [1971] 1 WLR 1751, [1970] 2 All ER 871
England and Wales
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Peyman v Lanjani CA 1985
Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Cited – Walbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.188153
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.
(1961) 178 EG 189
Cited – Ashworth Frazer Limited v Gloucester City Council HL 8-Nov-2001
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187995
The court considered the validity of a notice to determine an underlease. The beneficial owner of the reversion was a friendly society, all of whose property was vested in trustees of the society holding as nominees, and for the exclusive benefit, of the society. The whole management of the property was in the hands of a management committee of the society under whose direction the trustees were bound to act. When the underlessor’s interest was acquired, the underlessee was given notice that the sale had been made to the society and rent was collected from the underlessee by agents of the society.
Held: In view of the position of the trustees and the course of conduct, the trustees allowed the society to have the full management of the property and the notice by the society in its own name was valid.
Sargant J
[1923] 1 Ch 130
Cited – Dun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.188163
The claimant had been told she could live in a house for her life. On that assurance she improved the house.
Held: She had raised an equity, but how could it be satisfied? The court declined to order the grant of a life interest because it would have created a settlement, under which the claimant would have had the powers of a tenant for life. It suggested a long lease, determinable on her death at a nominal rent. Though the payment of a nominal rent was not contemplated when the representations were made, ‘perfect equity is seldom possible.’ The court ordered the grant of a long lease at a rent of andpound;30 per annum, determinable on the death of the tenant. The lease was to be non-assignable, and the other terms of the lease were to be agreed between the parties or, in default of agreement, determined by the county court.
Goff LJ
[1978] 2 EGLR 121
England and Wales
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187550
[1992] 7 CL 355
England and Wales
Considered – Laura Investments v Havering ChD 1992
The land was undeveloped when let to the tenant, who covenanted to build on it. On the rent review, the landlord contended that the rent should be calculated on the developed value, rather than in the condition as originally let.
Held: In the . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187395
The court held that in all the reported cases where it was held that an agreement was a licence rather than a tenancy: ‘In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy. In such circimstances it would be obviously unjust to saddle the owner with a tenancy, with all the momentous consequences that that entails nowadays, when there was no intention to create a tenancy at all.’
Lord Denning went on to consider whether the document was a sham: ‘The occupation has all the features of a service tenancy, and the parties cannot by the mere words of their contract turn it into something else. Their relationship is determined by the law and not by the label which they choose to put upon it.’ And ‘It is not necessary to go so far as to find the document a sham. It is simply a matter of finding the true relationship of the parties. It is most important that we should adhere to this principle, or else we might find all landlords granting licences and not tenancies, and we should make a hole in the Rent Acts through which could be driven – I will not in these days say a coach and four, but an articulated vehicle.’
Denning LJ
[1952] 1 TLR 1386
Cited – Finbow v Air Ministry 1963
The minister had mistakenly exercised a formal power to approve a licence to occupy land under a repealed section instead of its re-enacted successor. The claimant said that this was not an effective approval. The court also considered the . .
Cited – Addiscombe Garden Estates Ltd v Crabbe CA 1957
The trustees of a tennis club took possession of tennis courts and a clubhouse under a lease, and sought a new lease under the 1954 Act. The landlord said that they were only licensees and in any event were not entitled to a new lease since they . .
Approved – Heslop v Burns CA 1974
The defendants had lived in a house rent free for a long period. After the owner died, his executors sought possession saying the defendants were mere licencees. The defendants claimed a tenancy at will, and that the right now asserted was statute . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.186964
The Corporation let a farm to Sanderson. It reserved in favour of Cairns, another tenant farmer, the rights to use a drain across one of Sanderson’s fields and to enter and repair it. Water discharged by Cairns leaked through the drain and flooded Sanderson’s land. He sued the landlord on the covenant for quiet enjoyment.
Held: The flooding was a breach of the covenant. It is a question of fact and degree in each case as to whether the tenant’s ordinary use of the premises has been substantially interfered with.
Fry LJ said: ‘[T]he damage here has resulted to the plaintiff from the proper user by Cairns of the drains passing through the plaintiff’s land which were improperly constructed. In respect of this proper user Cairns appears to us to claim lawfully under the defendants by virtue of his lease, and to have acted under the authority conferred on him by the defendants. The injury caused to the field appears to us to have been, within the meaning of the covenant in that behalf contained in the lease to the plaintiff, a substantial interruption by Cairns, who is a person lawfully claiming through the defendants, of the plaintiff’s enjoyment of the land, and so to constitute a breach of the covenant for quiet enjoyment for which the defendants are liable in damages.’
Fry LJ
[1884] 13 QBD 547
Cited – Mowan v London Borough of Wandsworth and Another CA 21-Dec-2000
The claimant tenant sought damages from the landlord and neighbour and fellow tenant for nuisance caused by the neighbour’s aberrant behaviour.
Sir Christopher Staughton said: ‘there is a strong trend in the cases in favour of the landlord who . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.186080
Where a tenant is required to spend money on remedying the breach of the landlord’s covenant to repair, the money so spent could be invoked to abate the rent even if it thereafter falls due to a successor landlord. Discharge by the tenant of the landlord’s obligation to pay a rent charge issuing out of the land where this had been requested by the landlord was a good defence to a claim for rent. Macdonald CB: ‘I do not see how you entitle yourself to the interposition of this court. If the landlord is bound in law or equity to repair in consequence of the accident that has happened, and you were right in expending this sum in repairs for him, it is money paid to his use and may be set off against the demand for rent. If you fail in making out these points your ground of relief is destroyed in equity, as well as at law.’ The court established a right at common law of recoupment for a tenant against his landlord.
Lord Kenyon CJ said the landlord had no obligation to repair and even had there been he could be no set-off because the damages claimed were uncertain, which in the context must mean unliquidated: ‘One objection to the plea is that it does not set off any certain debt for uncertain damages. I do not indeed see by what covenant the landlord is bound to repair damages occasioned by fire or tempest. The exception was introduced in the lessee’s covenant for his benefit and to exempt him from particular repairs, but if the defendant can maintain any action against the plaintiff, his landlord, the sum to be recovered is uncertain. It must be assessed by a jury and there is no pretence to say that those uncertain damages may be set-off to the present action.’
Macdonald CB
(1591) Cro Eliz 222
England and Wales
Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185862
[2002] Legal Action, Aug 2002, 28
England and Wales
Updated: 29 April 2022; Ref: scu.185865
[1999] CLY 1373
England and Wales
Updated: 29 April 2022; Ref: scu.185866
The tenant sought to prevent the sale of the landlord’s reversion until the lessor’s repairing obligations had been met. One of the grounds was that on a sale the tenant’s right of set-off would not pass.
Held: An order was refused. Lightman J: ‘A tenant’s right to set off (against any liability to make payment to the landlord due under the lease) his claim for damages for breach of a provision in a collateral contract which runs with the reversion is exercisable (equally with his right to set off a claim for damages for breach of such a covenant contained in the lease) not merely against the person entitled to the reversion at the date of the breach, but also against any successor in title. The successor in title acquires the reversion and the benefit of all covenants contained in the lease subject to all equities existing at the date of his acquisition. The much debated decision in Reeves v Pope [1914] 2 KB 284 in nowise stands in the way of this conclusion’.
Lightman J
[1995] 2 EGLR 13
England and Wales
Cited – Reeves v Pope CA 1914
The potential landlord agreed with the proposed tenant to build a hotel by a date, and the tenant agreed to take a lease when it was ready. The building was late in completion. The tenant took the lease but without prejudice to his claim for . .
Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185864
The landlord served two notices under the 1954 Act.
Held: The tenant’s counter-notice was out of time. If the first notice was valid, a counter-notice served within four months of the second but not the first was out of time.
[1980] 1 WLR 55
Landlord and Tenant Act 1954 24
Cited – Railtrack Plc v Gojra and Gojra CA 28-Nov-1997
The tenant served two notices under the Act.
Held: The tenant’s application was out of time. If the first notice was valid, a later notice did not act to restart time running and the application for a new tenancy had to be begun within four . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185744
A lessor or vendor does not impliedly warrant that the premises are fit for any particular purpose. It is the contract which allocates the risk of the premises being unfit for such a purpose to the lessee. The lessee has duties to investigate the title, and to ensure that the permitted use under the tenancy was the permitted use in planning law.
[1965] 2 QB 601, [1965] 1 All ER 338
England and Wales
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185669
In construing a document ‘the principle is that that is certain which the context renders certain.’
[1962] 1 WLR 20
England and Wales
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185087
A clause in his lease allowed the tenant to determine it by notice expiring on Michaelmas day 1837. The tenant mistakenly gave notice to quit and deliver up the premises on 24 June 1837. The notice was expressed to be ‘agreeably to the covenants of the lease.’
Held: The notice was not effective to determine the lease. ‘The covenant to pay rent during the whole term cannot be got rid of by any notice to quit which is not in accordance with the proviso introduced into the lease for the purpose.’ and ‘The cases that seemed to point the other way merely shew that, where there is no covenant, a notice describing the premises, so as to be perfectly understood between the parties, will be sufficient: but in none has a proviso or covenant in a deed been held to be satisfied by a notice inconsistent with the terms of it.’
Lord Denman CJ
(1840) 11 Ad and EI 720
Cited – Doe d Cox v Roe 1803
The landlord of a public house in Limehouse gave notice to quit ‘the premises which you hold of me . . . commonly called or known by the name of The Waterman’s Arms.’ However, the only property let by the landlord to the tenant was a public house . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185077
The issue on a challenge of an arbitration award was whether the arbitrator had acted fairly.
[1992] 2 EGLR 114
England and Wales
Mentioned – Warborough Investments Ltd v S Robinson and Sons (Holdings) Ltd CA 10-Jun-2003
The applicant sought remission of the decision of the arbitrator on a rent review. The arbitrator had taken a different approach from that suggested by either party’s expert.
Held: Arbitrators should be give a wide margin of appreciation. Even . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.184486
In the context of section 30(1)(f) of the 1954 Act ‘premises’ applies only to parts of a built structure which perform some structural function.
[1957] 1 QB 323
Landlord and Tenant Act 1954 30(1)(f)
Cited – Ivorygrove Ltd v Global Grange Ltd ChD 18-Jun-2003
The tenant sought a new lease. The landlord resisted saying that it intended to carry out works of a substantail nature which would require it to have possession. The tenant responded that the works were not structural.
Held: The words of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.184022
[1957] 1 WLR 1094
Landlord and Tenant Act 1954 30(1)(f)
Cited – Ivorygrove Ltd v Global Grange Ltd ChD 18-Jun-2003
The tenant sought a new lease. The landlord resisted saying that it intended to carry out works of a substantail nature which would require it to have possession. The tenant responded that the works were not structural.
Held: The words of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.184023
After one tenancy the former tenant as landlord’s representative became joint tenants with the new tenant who provided the funds and bought out the former tenants compensation rights. The landlord gave notice to terminate the tenancy, and the new tenant gave notice of his desire to claim the compensation. The landlord said the notice was inadequate since only one tenant had given it.
Held: The notice was adequate. It had been given by the tenant with effectively all the equity in the tenancy. Furthermore (Greer LJ doubting) the object of the section was to ensure that the landlord would know what claims were to be made against him, great injustice night be caused by a requirement that all the tenants should join in the notice.
Scrutton, Sankey, Greer LJJ
(1928) 97 LJKB 749, [1928] LT 504
Agricultural Holdings Act 1923 12
England and Wales
Disapproved – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Cited – Greenwich London Borough Council v McGrady CA 1982
A notice to quit given by one of two joint tenants without the consent of the other was effective to determine the periodic tenancy to which it related.
Sir John Donaldson MR said: ‘In my judgment, it is clear law that, if there is to be a . .
Cited – Hammersmith and Fulham London Borough Council v Monk CA 1990
Mr Monk and Mrs Powell held a tenancy of the council in their joint names. They fell out and Mrs Powell gave the contractual four week notice. Mr Monk objected that this should not have allowed the council to end the tenancy.
Held: The notice . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.183456
The landlord served a notice to terminate the tenancy. The tenant served a notice to say that he did want a new tenancy, but the law then changed and he purported to withdraw his notice, and gave up possession claiming compensation for improvements. The landlord said he had already become entitled to possession.
Held: The landlord had become entitled to an indefeasible right to possession before the change in law came into effect, and therefore no claim for compensation based upon the new law could apply.
Brightman J said: ‘it is a necessary implication from section 25(5) that a tenant is under a statutory obligation to serve notice one way or the other within the two month period, although I accept that there is no sanction imposed on him for ignoring that obligation, except his inability to apply to the court.’ Once served, the tenant’s counter-notice was irrevocable.
Brightman J
[1971] Ch 935
Landlord and Tenant Act 1954 25(5)
England and Wales
Doubted – Pennycook v Shaws (EAL) Ltd ChD 28-Nov-2002
The landlord served a notice to terminate the tenancy. By mistake the tenant’s solicitors served a counter-notice that their client did not wish to renew. Realising their mistake, they served a second counter-notice, purporting to revoke the first. . .
Cited – Shaws (EAL) Ltd v Pennycook CA 2-Feb-2004
Tenant’s First Notice to terminate, stood
The landlord served a notice to terminate the business lease. The tenant first served a notice to say that it would not seek a new lease, but then, and still within the time limit, it served a second counter-notice seeking a new tenancy. The . .
Cited – Baglarbasi v Deedmethod Ltd ChD 1991
A counter notice under the Act, once given was irrevocable. Once a positive counter notice was served, the landlord could proceed on the basis that the tenant was willing to give up possession. . .
Cited – Bridgers and Hamptons Residential v Stanford CA 1991
The court considered a notice which did not comply with section 25 in several respects. One defect was that it did not comply with 25(5) since it only required the tenants to notify the landlord if they were not willing to give up possession: it . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.183336
The landlord unlawfully failed to supply a rent book, and the tenant denied a liability to pay rent because of his illegality.
Held: Where one party carries out a lawful contract, but in an unlawful manner, the lawful contract remains enforceable. The absence of a rent book did not prevent the enforcement of a contract for the payment of rent as the court held the provision of a rent book, though required by law, was a collateral matter which did not affect the enforceability of the contract.
[1970] 2 QB 504
Cited – Garbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.183342
The lease provided for re-entry for breach of covenant. The landlord served a notice requiring repairs and payment of compensation on both the tenant and the mortgagee. The mortgagees served a counter-notice, and the landlord proceeded against the tenant alone. The tenant argued that the counter-notice operated to trigger the requirement for proceedings to begin only with consent.
Held: The tenant could not rely upon the mortgagee’s counter-notice, and leave was not required to proceed against the tenant alone. The landlords had no obligation to serve the original notice on the mortgagees.
Goddard LCJ
[1957] 1 QB 238, [1956] 3 WLR 990, 100 Sol Jo 875
Leasehold Property (Repairs) Act 1938 1(2), Law of Property Act 1925 146
Cited – Smith v Spaul CA 16-Dec-2002
The landlord sought to forfeit the lease for breach of a repairing covenant. The mortgagee had gone into possession, and having received the s146 notice, had served a counter-notice under the 1938 Act. The mortgagee having assigned the lease to the . .
Cited – Old Grovebury Manor Farm Ltd v W Seymour Plant Sales and Hire Ltd and Another CA 21-Jun-1979
The plaintiffs granted a business lease to the defendants for three years. The tenant covenanted not to assign the lease without the written consent of the landlord, such consent not to be unreasonably withheld in the case of a respectable tenant. . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.183195