Category: Landlord and Tenant

Razzaq v Pala: QBD 6 Jun 1997

The forfeiture of a bankrupt’s lease is not an exercise of a security disallowing landlord from proving in the bankruptcy. the right of physical re-entry is neither a ‘security’ nor a ‘remedy’ within the meaning of those provisions, nor does it constitute ‘other proceedings’ or the execution of ‘other legal process’. The present law is therefore anomalous.

Judges:

Lightman J

Citations:

Times 06-Jun-1997, Gazette 18-Jun-1997, [1997] 1 WLR 1336

Statutes:

Insolvency Act 1986 10 11(3) 130(4) 252(2) 285(3)

Insolvency, Landlord and Tenant

Updated: 09 April 2022; Ref: scu.85681

Knapdale (Nominees) Ltd v Donald and Another: OHCS 22 Aug 2000

Despite the requirement for statutory notices, an agricultural tenancy could be terminated by an implied agreement for surrender. Nevertheless, a formal lease to a partnership was not to be deemed to be surrendered on the death of one partner, where the lease had been entered into in circumstances which suggested that the tenants did not appreciate technical the legal significance of the documents.

Citations:

Times 22-Aug-2000

Statutes:

Agricultural Holdings (Scotland) Act 1991 21(1)

Agriculture, Landlord and Tenant

Updated: 09 April 2022; Ref: scu.82819

Kensington and Chelsea Royal London Borough Council v Simmonds: CA 15 Jul 1996

A possession order was properly made against a tenant for the misbehaviour of a family member.

Citations:

Times 15-Jul-1996, [1996] 29 HLR 507

Statutes:

Housing Act 1985 Sch 2 Part 1

Jurisdiction:

England and Wales

Cited by:

Cited – Northampton Borough Council v Lovatt and Another CA 11-Nov-1997
The local authority had obtained a possession order against the defendant tenants because of the behaviour of the tenants’ children as ‘conduct which is a nuisance or annoyance to neighbours’ The question on appeal was whether behaviour which . .
Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 09 April 2022; Ref: scu.82736

Inntrepreneur Pub Company (CPC) Ltd and Another v Langton: ChD 10 Nov 1999

A tenant defending an action for forfeiture of his lease for non-payment of rent could not in an application for relief from forfeiture, set up a claim against the landlord for breach of warranty. The court was tasked to see if the tenant could discharge the arrears within a reasonable time. Such a speculative possibility could not be taken into account.

Citations:

Gazette 17-Nov-1999, Times 10-Nov-1999

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.82368

Graysim Holdings Ltd v P and O Property Holdings Ltd: HL 24 Nov 1995

A market hall had been let to a tenant under a lease. The tenant fitted out the entire hall with stalls and entered into agreements with the stallholders, by which they paid the tenant a rent and service charge for services provided by the tenant. The head landlord served a notice to terminate the lease on the tenant, who applied for a new tenancy. Which tenant was properly the occupier, the respondent, the tenant of the enclosed market hall, or the individual stallholders with exclusive possession of their stalls?
Held: The market operator was not a tenant protected under the 1954 Act. ‘Occupancy’ for the security provisions requires some physical occupation or use by the tenant himself. There could not be more than one occupier of the same holding for the purposes of that Act. The occupation by the individual stallholders excluded the intermediate lease from protection.
Lord Nicholls: ‘first I must consider a feature central to the statutory structure: the requirement that the property must be ‘occupied’ by the tenant. As has been said on many occasions, the concept of occupation is not a legal term of art, with one single and precise legal meaning applicable in all circumstances. Its meaning varies according to the subject matter. Like most ordinary English words ‘occupied’, and corresponding expressions such as occupier and occupation, have different shades of meaning according to the context in which they are being used. Their meaning in the context of the Rent Acts, for instance, is not in all respects the same as in the context of the Occupiers’ Liability Act 1957.
This is not surprising. In many factual situations questions of occupation will attract the same answer, whatever the context. A tenant living alone in a detached house under a residential lease would be regarded as the sole occupier of the house. It would need an unusual context to point to any other answer. But the answer in situations which are not so clear cut is affected by the purpose for which the concept of occupation is being used. In such situations the purpose for which the distinction between occupation and non-occupation is being drawn, and the consequences flowing from the presence or absence of occupation, will throw light on what sort of activities are or are not to be regarded as occupation in the particular context. In Part II of the Act of 1954 ‘occupied’ and ‘occupied for the purposes of a business carried on by him’ are expressions employed as the means of identifying whether a tenancy is a business tenancy and whether the property is part of the holding and qualifies for inclusion in the grant of a new tenancy. In this context ‘occupied’ points to some business activity by the tenant on the property in question. The Act seeks to protect the tenant in his continuing use of the property for the purposes of that activity. Thus the word carries a connotation of some physical use of the property by the tenant for the purposes of his business.’

Judges:

Lord Nicholls of Birkenhead

Citations:

Gazette 17-Jan-1996, Times 24-Nov-1995, [1995] 3 WLR 854, [1996] 1 AC 329, [1996] 3 EG 124, [1995] 4 ALL ER 831

Statutes:

Landlord and Tenant Act 1954 Part II

Jurisdiction:

England and Wales

Citing:

Appeal from – Graysim Holdings Ltd v P and O Property Holdings Ltd CA 2-Mar-1994
‘Occupation’ by a tenant does not require physical occupation by him for him to have the right to renew the lease under the Act. A market operator letting all the stalls in a market area was a protected tenant. . .
Cited – Wandsworth London Borough Council v Singh CA 1991
The Local Authority were lessees of some 500 square metres of public open space at St. Johns Hill in Wandsworth, which they and their horticultural sub-contractors visited periodically. It had been used by local inhabitants for leisure and . .

Cited by:

Reversed on appeal – Graysim Holdings Ltd v P and O Property Holdings Ltd CA 2-Mar-1994
‘Occupation’ by a tenant does not require physical occupation by him for him to have the right to renew the lease under the Act. A market operator letting all the stalls in a market area was a protected tenant. . .
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 . .
Cited – Bacchiocchi v Academic Agency Limited CA 20-Feb-1998
The ‘continuous occupation’ required of a tenant to support a claim for disturbance on the non-renewal of his lease under the Act is not to be lost for the normal incidents of business life. The tenant had anticipated the non-renewal of the tenancy . .
Cited – Clear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
Cited – Pointon York Group Plc v Poulton CA 13-Jul-2006
The lease included a right to use seven designated parking spaces. The parties disputed whether parking space could be occupied in such a way as to be given protection under the Landlord and Tenant Act 1954.
Held: A parking space is an . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.80999

Garston and Others v Scottish Widows Fund and Life Assurance Society: CA 1 Jul 1998

Notices served together breaking lease and requiring new lease but mistaking dates should be held valid where the combined intention was unmistakable, though on its own the mistaken statutory notice requiring new tenancy from wrong date would not stand. A statutory counter-notice had to be precisely correct since it exercised a defined function.

Citations:

Gazette 01-Jul-1998, Times 14-Jul-1998

Statutes:

Landlord and Tenant Act 1954 26(2)

Jurisdiction:

England and Wales

Citing:

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.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.80761

G S Fashions Ltd v B and Q Plc: ChD 26 Oct 1994

The landlord’s forfeiture of a lease, having once been accepted by the tenant, the landlord could not then withdraw the forfeiture against the tenant’s wishes. He had raised an estoppel precluding him from denying that he had forfeited the lease.

Citations:

Independent 28-Oct-1994, Times 26-Oct-1994, [1995] 1 WLR 1088

Jurisdiction:

England and Wales

Cited by:

Cited – Rother District Investments Limited v Corke, Orr, Richards ChD 20-Jan-2004
The court was asked as to the legal effect of a purported peaceable re-entry and forfeiture of a lease by a purchaser of the reversion prior to registration of the purchaser as proprietor at HM Land Registry.
Held: The appeal was denied. What . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.80720

Fivecourts Ltd v R Leisure Development Co Ltd: QBD 7 Sep 2000

The tenant took on derelict premises subject to a full repairing covenant. It sublet part to a subsidiary company, but failed repeatedly to comply with agreed schedules for the works of repair and embodied in consent orders. It sought relief from forfeiture arguing that the court had power to alter consent orders against the wishes of one party.
Held: The power to alter a consent order applied in exceptional circumstances only, and the sub-tenant should not be allowed to apply from relief where this thrust on the landlord a tenant he had not agreed to.

Citations:

Gazette 07-Sep-2000, [2001] LandTR 47

Statutes:

Landlord and Tenant Act 1925 146

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.80592

Forebury Estates Ltd v Chiltern Thames and Eastern Rent Assessment Panel: QBD 6 Jul 2000

The appellant was unhappy with rent assessments, and complained in particular that the committee had taken account of the local authority housing register when setting the rent. The court found that the committee was right to refer to the list, but should do so with care and only indirectly. The presence or absence of the local authority housing would have an effect on the rents payable within an area.

Citations:

Gazette 06-Jul-2000

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.80631

Dean and Chapter of Cathedral of Metropolitan Church of Christ Canterbury v Whitbread Plc: ChD 7 Feb 1995

A tenant holding over after his lease has to pay the market rent for property. It is by way of an action for the use of the property. Where there is a disagreement on the holding over rent it will be set as market value.

Citations:

Ind Summary 20-Mar-1995, Times 07-Feb-1995

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.79859

BRS Northern Ltd v Templeheights Ltd and Another: ChD 8 Jan 1998

A landlord was found to have unreasonably refused his consent to an assignment even though the purpose of assignment was to frustrate the landlord’s development intentions.
Three grounds for withholding consent were advanced. Two of these were held to have been reasonable. The third was bad for two reasons, first, because it was not in the landlord’s mind at any relevant time and, secondly, because it was bad in law. Having considered various English authorities (some of the ex facie conflicting) Neuberger J said: ‘In my judgment where, as here, a refusal of consent to an assignment is based on a number of reasons, the fact that one of those reasons is bad will not normally render the refusal unreasonable, assuming that the other reasons are good. As the observation in [Berenyi v Watford Borough Council [1980] 2 EGLR 38] and British Bakeries suggests, it seems to me that, ultimately, it is a question of considering the covenant and the refusal of consent in each case. Thus, it may be clear that the bad reason is by far the most important reason, and that the purportedly good reasons were merely makeweights; or it may be that the existence of the bad reason infects or vitiates what would otherwise, in the absence of the bad reason, be a good reason. However, in the absence of such special factors, I consider that what was agreed in British Bakeries… represents, at any rate prior to 1988, the law in relation to most covenants not to do something without landlords’ consent, such consent not to be unreasonably withheld…’.

Judges:

Neuberger J

Citations:

Gazette 08-Jan-1998, [1998] 2 EGLR 182

Statutes:

Landlord and Tenant Act 1988

Cited by:

Cited – No1 West India Quay (Residential) Ltd v East Tower Apartments Ltd ChD 6-Oct-2016
Consent to assignment – delay
Tenants under long residential leases challenged the refusal of the landlord to consent to particular assignments of apartments. The leases contained provisions saying that such consent was not to be unreasonably withheld. The landlord now appealed . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.78716

Banks and Another v Kokkinos and Another: ChD 19 Jan 1999

Where the rent-review clause in a lease provided an ultimate failsafe procedure to take place if the review had not been completed by a certain time, then the presumption against time being of the essence could be displaced.

Citations:

Times 19-Jan-1999

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.78165

Basingstoke and Deane Borough Council v Paice: CA 3 Apr 1995

A dwelling subtenant of part of premises comprised in a business lease became a secure tenant on the surrender of the mesne tenancy. Section 79 of the 1985 Act had ambulatory effect.
Waite LJ said: ‘The use of the term ‘at any time’ in section 79(1) shows that the section is to have ambulatory effect. Occupiers, that is to say, may be liable to pass in and out of secure tenant status – depending upon whether their landlord for the time being is or is not a local authority; or upon changes in the tenant’s own circumstances taking him in and out of the tenant condition.’

Judges:

Waite LJ

Citations:

Ind Summary 15-May-1995, Times 03-Apr-1995, (1995) 27 HLR 433, [1995] 2 EGLR 9, [1995] 44 EG 139, (1995) LG Rev 909, [1995] EG 54 (CS), [1995] NPC 46

Statutes:

Housing Act 1985 79(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Ali Bhai and Another v Black Roof Community Housing Association Ltd CA 2-Nov-2000
The tenant appealed against a refusal of what he said was his right to buy the flat he occupied. The Housing Association respondent and arbitrator had said that the tenancy had been assured, not secure and that therefore no right to buy had existed. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Housing

Updated: 08 April 2022; Ref: scu.78274

Smiley v Townshend: CA 1950

At the end of the lease, the tenant had not complied with his covenant to repair. The court considered the damages which might be awarded.
Held: The court may take into account events which had not yet occurred but which threw a light on the condition of the property at the end of the lease.
Denning LJ said: ‘In cases where it is plain that the repairs are not going to be done by the landlord, the cost of them is little or no guide to the diminution in value of the reversion, which may be nominal: see Espir v Basil Street Hotel, and James v Hatton. B ut in cases where the repairs have been, or are going to be, done by the landlord, the cost may be a very real guide. That is shown by the recent case of Jones v Herxheimer to which we were referred. In cases where it is open to question whether the repairs will be done by the landlord, as in the present case, then the costs may afford a starting figure; but it should be scaled down according to the circumstances, remembering that the real question is : What is the injury to the reversion? That is what the Judge did here, as I read his judgment: he used the cost merely as an aid in assessing the diminution in value of the reversion. I do not think that I should myself have given so much weight to the cost of repairs; or, at any rate, having regard to the requisition I should have scaled down the figure considerably just as damages for breach of covenant to keep in repair during the term are scaled down according to the length of time unexpired: see Conquest v Ebbetts.’

Judges:

Denning LJ

Citations:

[1950] 2 KB 311

Jurisdiction:

England and Wales

Cited by:

Cited – Lyndendown Ltd v Vitamol Ltd CA 6-Jul-2007
At the end of the lease, the subtenant had failed to comply with his obligation to repair the property, leaving the head tenant liable to the landlord. The landlord had issued a letter which forgave the tenant from his obligations.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.259149

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 showed that the tenant had been knowingly and actively permitting the house to be so used, and had probably been receiving profits from the business.
Held: The breach was not capable of remedy. A breach of a covenant in a lease against illegal use, a negative covenant, is not one capable of remedy, and the court should be more ready to grant forfeiture.
Greer LJ said that the stigma attaching to the property and the resultant loss of value rendered the breach irremediable.
Maugham LJ said that such damage was remediable within a reasonable time.

Judges:

Greer LJ, Maugham LJ

Citations:

[1935] 1 KB 87

Statutes:

Law of Property Act 1925 146

Jurisdiction:

England and Wales

Cited by:

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 – Central Estates (Belgravia) Ltd v Woolgar (No 2) CA 20-Jun-1972
Right to forfeit waived by rent demand
The landlords’ managing agents learned that the tenant had been convicted of keeping a brothel at the premises and served a section 146 notice intending to forfeit the tenancy. He told his staff and instructed them not to demand or accept rent. But . .
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 – Glass v Kencakes 1966
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 . .
Cited – Telchadder v Wickland Holdings Ltd SC 5-Nov-2014
Old breaches did not support possession order
The mobile home tenant was said to have paraded on the caravan park in combat style clothing, and disguising his face, causing fear among the other tenants. He now appealed against confirmation of the order for possession. He said that there had . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.234413

Watson v Goldsborough: CA 1986

The representative of an angling club sent the owner of the land a draft lease. The owner agreed that the club could have a lease, and in reliance on that assurance the club improved the land.
Held: An equity had been established and that it should be satisfied by the grant of a lease on the terms of the draft.

Citations:

[1986] 1 EGLR 265

Jurisdiction:

England and Wales

Cited by:

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.

Estoppel, Landlord and Tenant

Updated: 08 April 2022; Ref: scu.187549

Elmcroft Developments Ltd v Tankersley-Sawyer: CA 1984

The premises were a part of a late Victorian purpose-built mansion block consisting of 27 flats, including seven basement flats. They formed part of a larger terrace of buildings of a similar character and provided high-class accommodation in a sought-after fashionable area of London. The provision of a damp-proof course was a repair under a landlord’s covenant which required the landlord to ‘maintain and keep the exterior of the building and the roof, the main walls, timbers and drains thereof in good and tenantable repair and condition’.
Held: The remedial work necessary to eradicate the rising damp was the installation of a horizontal damp-proof course by silicone injection and formation of vertical barriers by silicone injection. This was within the landlord’s repairing covenant. It was necessary in order to repair the walls and, although it involved improvement over the previous ineffective slate damp-proof course, having regard to the nature and locality of the property, this did not involve giving the tenant a different thing from that which was demised. The court distinguished Lamdin because it related to business premises which were over 100 years old, whereas this case related to a recent letting ‘of what was built as a separate self-contained flat in a high-class fashionable area’.
Lord Justice Ackner said: ‘there was constructed into the walls what was intended to be a damp-proof course, consisting of slates laid horizontally. These existed in the external and the party walls of the flat, but, owing either to a defect in design or construction or bad workmanship, this layer of slates intended to be a damp-proof course was ineffectual because it was positioned below ground. The result was obvious. It allowed moisture to be drawn up from the ground by capillary action, with the inevitable result that the flats were in a damp condition, rising damp resulting from what was described as the bridging of the damp-proof course, and parts of the interior of main walls of the flats had been adversely affected up to a hight of about 1 to 1.5m.’ and ‘To my mind it is unarguable that the state of that flat in particular, bearing in mind the age, character and locality of the flat was such as to be quite unfit for the occupation of a reasonably minded tenant of a class who would be likely to take it — very probably unfit for any tenant….’

Judges:

Ackner LJ, Watkins LJ

Citations:

[1984] 1 EGLR 47, (1984) 270 EG 140

Jurisdiction:

England and Wales

Citing:

Distinguished – Pembery v Lamdin CA 1940
There was an obligation on the landlord to keep the premises in repair in the condition in which they were demised. The premises were ground floor and basement premises which were let for the purpose of providing accommodation for the public for . .
Cited – Brew Brothers Limited v Snax (Ross) Ltd CA 1970
The court considered the extent to which the nature of a building affected the duty to repair under a lease.
Sachs LJ said: ‘It seems to me that the correct approach is to look at the particular building, to look at the state which it is in at . .

Cited by:

Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Distinguished – 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 . .
Cited – Quick v Taff Ely Borough Council CA 1986
Because of fungus, mould growth and dampness, the tenant’s council house was virtually unfit for human habitation in the winter when the condensation was at its worst. Section 32(1) of the 1961 Act implied in the tenancy a covenant by the council to . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.235457

Pembery v Lamdin: CA 1940

There was an obligation on the landlord to keep the premises in repair in the condition in which they were demised. The premises were ground floor and basement premises which were let for the purpose of providing accommodation for the public for drinking cocktails and wines. The covenant was that the landlord ‘would keep the external part of the demised premises other than the shop front in good and tenantable repair and condition’.
Held: ‘It is an old house, 100 years or more in age, and it was built at a time when modern devices for avoiding the consequences of damp were unknown. As the surveyor points out in his report, there was no provision for waterproofing it. When one comes to construe the repairing covenant, and looks (as directed by the authorities) to the nature of the premises demised, it is clear from the evidence, the judgment, and the surveyor’s report that this was a house of the old type, with a cellar for the most part built into the ground, without any precautions against damp oozing through the porous bricks into the cellar. The house above fortunately may have remained dry, but that was the kind of house which was demised.’
In this particular covenant: ‘The first question which arises in this case is what was the nature of the obligation to repair. In order to ascertain that, it is first necessary to consider the nature of the premises which had to be repaired under the covenant. I think that, for the purposes of this case, the principle which has never been doubted, is to be found stated in a short passage in a judgment of Lord Esher, MR, in Lister v Lane and Nesham. That is a case which has been subsequently followed and approved in Lurcott v Wakely and Wheeler. In Lister v Lane and Nesham, after reviewing the earlier authorities, Lord Esher, MR, who was speaking there of a tenant, says:
‘Those cases seem to me to show that, if a tenant takes a house which is of such a kind that by its own inherent nature it will in course of time fall into a particular condition, the effects of that result are not within the tenant’s covenant to repair. However large the words of the covenant may be, a covenant to repair a house is not a covenant to give a different thing from that which the tenant took when he entered into the covenant. He has to repair that thing which he took; he is not obliged to make a new and different thing ….’
Applying that to a landlord, in the same way as it is in that case applied to a tenant, if the counterclaim here made by Mrs Lamdin be correct, she is entitled to receive at the hands of this landlord ‘a different thing’ form that which she took when she entered into the covenant. She took this old house with a cellar without any waterproof protection, and she is asking the landlord so to repair that house as to give her a cellar which has a waterproof protection and is dry. That is not a right which she can possibly maintain, because the obligation of the landlord is to repair that which is demised, and not to give her something much drier in its nature than that which was demised.’ The installation of a damp course was not a repair.

Judges:

Slesser LJ

Citations:

[1940] 2 All ER 434

Jurisdiction:

England and Wales

Cited by:

Distinguished – Elmcroft Developments Ltd v Tankersley-Sawyer CA 1984
The premises were a part of a late Victorian purpose-built mansion block consisting of 27 flats, including seven basement flats. They formed part of a larger terrace of buildings of a similar character and provided high-class accommodation in a . .
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
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 . .
Applied – Wainwright v Leeds City Council CA 1984
The court considered the landlord’s covenant for repair of residential property.
Held: The installation of a damp-course in property which did not previously have one was not a repair: ‘applying the facts of that case to the facts of this . .
Cited – Quick v Taff Ely Borough Council CA 1986
Because of fungus, mould growth and dampness, the tenant’s council house was virtually unfit for human habitation in the winter when the condensation was at its worst. Section 32(1) of the 1961 Act implied in the tenancy a covenant by the council to . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.235456

Lubren v Lambeth London Borough Council: CA 1987

The court gave broad approval of a median figure of pounds 1,000 damages a year to be awarded to a tenant for a five-year deterioration of premises from habitable to ‘appalling’.

Citations:

(1987) 20 HLR 165

Jurisdiction:

England and Wales

Cited by:

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.

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.258845

Rhodes v Allied Dunbar Pension Services Ltd: CA 1989

The intermediate tenant had charged the lease to the bank, which appointed receivers. Both the sub rent and the head rent fell into arrears. The head landlord then served a notice direct on the subtenant requiring him to pay the rent direct to the head landlord. The receiver then levied distress againt the sub tenant. The court held that the right to recover rent was a chose in action, which as a result of the appointment of the recivers assigned the right to receive the rent to the receivers. Because the head landlord knew of the appointment that assignment on the appointment took priority over the head landlord’s own notice (Dearle -v- Hall).
Held: The head landlord’s appeal succeeded. The bank had never gone into possession, and the intermediate tenant was therefore entitled to continue receiving the rents, and the head landlord was able to serve the notice. The appointment of receivers and crystallisation of the bank’s floating charge made no effective difference.
In the context of the mortgagor’s right to receive and retain the income of the mortgaged property without any liability to account to the mortgagor for it, the mortgagor remains in possession of the property ‘only by leave and licence of the mortgagee.’

Judges:

Nicholls LJ

Citations:

[1989] EG 70, [1989] 1 WLR 800

Statutes:

Law of Distress Amendment Act 1908 6

Jurisdiction:

England and Wales

Citing:

Cited – Dearle v Hall 1828
. .
Cited – Knill v Prowse 1884
An assignee of land may sue the tenant for the rent. . .
Cited – Gaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
Cited – Wallrock v Equity and Law Life Assurance Society 1942
. .
Cited – Ind, Coope and Co 1911
. .
Cited – Turner v Walsh CA 1909
The landlord sought to enforce the tenant’s repairing covenants. After the tenancy had been created, he had charged his interest. The tenant said that, since the lessor had conveyed his interest by way of mortgage, the right to sue lay exclusively . .
Cited – Gaskell v Gosling HL 1897
Affirmed . .
Cited – Challoner v Robinson 1908
A landlord entitled to distrain for rent, could seize all goods and chattels found on the tenant’s premises whether they were the property of the tenant or a stranger. . .
Mentioned – Ratford v Northavon District Council CA 1986
The reality of the agency of a receiver is reflected in the continuity, after the appointment of receivers, of the rateable occupation of the mortgagor through the agency of the receivers. The possession of an agent is to be attributed to that of . .

Cited by:

Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 08 April 2022; Ref: scu.264292

Crate v Miller: CA 1947

A weekly tenancy which begins on Saturday may be determined validly by notice to quit either on Friday or Saturday. Both are equally intimations that tenant is to quit when the current period ends.

Citations:

[1947] KB 946

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 08 April 2022; Ref: scu.258394

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. An arbitrator had decided the new rent on the basis of his own findings as to the extent of the land.
Held: There had been an implied surrender of the lease, and in any event an issue estoppel arose from the determination by the arbitrator even though he had been asked only to decide the rent.

Judges:

C Freedman QC

Citations:

[2006] EWHC 2324 (Ch)

Links:

Bailii

Statutes:

Law of Property Act 1925 62(1)

Jurisdiction:

England and Wales

Citing:

Cited – Kirkby v Robinson 1965
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 . .
Cited – Gray v Owen 1910
Even if one of the parties to a tenancy is acting under a mistake, there can be a surrender of a tenancy by law, provided that the mistake is not induced by the fraud of the other. . .
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Huckvale v Aegean Hotels Ltd CA 1989
Whether there has been an extinguishment of easements is a question of fact and degree in each case. . .
Cited – Tarjomani v Panther Securities Ltd CA 1983
The tenant disputed whether he had surrendered the property in the lease.
Held: The court considered the basis of an implied surrender: ‘In my judgment, it is indeed estoppel that forms the foundation of the doctrine. The doctrine operates . .
Cited – Long v Gowlett 1923
Except where a right claimed is continuous and apparent, there must be diversity of ownership or occupation prior to the conveyance for section 62 (1) to apply. . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment 1977
. .
Cited – Fidelitas Shipping Co Ltd v V/O Exportchleb CA 1965
Where there is an award that is on its face an interim award, then the arbitrator is only functus officio with respect to the issues dealt with in that interim award and retains the authority to deal with the remaining matters. Issue estoppel . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Arbitration

Updated: 07 April 2022; Ref: scu.245070

Heffernan, Regina (on the Application of) v the Rent Service: Admn 10 Oct 2006

The claimant sought judicial review of the redetermination of housing benefits payable in respect of two flats rented out by him. The rent office said that the regulations were merely intended to put in statute form the previous practice used when identifying the ‘locality’ fro comparable lettings.

Judges:

Gilbart QC J

Citations:

[2006] EWHC 2478 (Admin), [2006] NPC 108, [2007] ACD 30

Links:

Bailii

Statutes:

Housing Benefit (General Regulations) 1987 12CA, Rent Officers (Housing Benefit Functions) Order 1997 SI 1997/1984

Jurisdiction:

England and Wales

Citing:

Cited – Cumpsty, Regina (on the Application of) v Rent Service Admn 8-Nov-2002
. .
Cited – Regina (Catherine Dinsdale, Caloline Wilson, Barbara Shaw, and Safina Saadat) v The Rent Service Admn 2-Feb-2001
. .
Cited – Regina (Saadat) v The Rent Service CA 26-Oct-2001
When choosing an area over which comparisons of rents are to be made, the Service had to look at a locality which was no larger than was necessary to establish such a comparison. The choice of too wide an area resulted in the inclusion within the . .

Cited by:

Appeal from – Rent Service v Heffernan, Regina (on the Application of) CA 13-Jun-2007
Appeal against housing benefit rederminations. . .
At first instance – Heffernan, Regina (on the Application of) v The Rent Service HL 30-Jul-2008
The appellant challenged the decision of the respondent to redetermine the rents for two properties, saying that the officer had wrongly interpreted the meaning of locality when looking for comparable properties.
Held: The determinations were . .
Lists of cited by and citing cases may be incomplete.

Benefits, Landlord and Tenant

Updated: 06 April 2022; Ref: scu.245358

Smyth-Tyrrell and Another v Sowden: ChD 14 Jul 2017

Landlord’s application in their claim under the 1996 Act to challenge a final award in an arbitration against their tenant concerning notices, two to remedy, and two to quit, two holdings.

Judges:

Paul Matthews HHJ

Citations:

[2017] EWHC 2331 (Ch)

Links:

Bailii

Statutes:

Arbitration Act 1996, Agricultural Holdings Act 1986

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 05 April 2022; Ref: scu.597457

Amin v Barking Central Management Company, Re 87 Axe Street (No2) Ltd: UTLC 3 Jul 2017

UTLC LANDLORD AND TENANT – service charge – construction of lease – whether tenant required to contribute to expenditure upon the development or only upon the building containing the tenant’s flat

Citations:

[2017] UKUT 232 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 05 April 2022; Ref: scu.591395

S Franses Ltd v The Cavendish Hotel (London) Ltd: QBD 3 Jul 2017

Appeal from refusal of new lease under 1954 Act. Landlord wanting to reconstruct premises. Tenant saying that the construction scheme was artificial.
Held: The landlords intention had to be genuine.

Judges:

Jay J

Citations:

[2017] EWHC 1670 (QB), [2017] WLR(D) 503

Links:

Bailii, WLRD

Statutes:

Landlord and Tenant Act 1954 (

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 05 April 2022; Ref: scu.591315

Norwich Union Life Insurance Society v Shopmoor Ltd: ChD 1999

Shopmoor’s predecessors demised premises for 150 years at a yearly rent of andpound;100 on payment of a premium. A covenant provided that the tenant was not to assign or sublet without the landlord’s consent, not to be unreasonably withheld or delayed. In April 1996 Norwich Union contracted to sale of the lease, conditional on a subletting of part, and sought consent. Shopmoor requested particulars and, in particular, as to the terms of the conditional subletting. NU answered all the questions and again sought consent. After more correspondence in November Norwich Union wrote claiming that Shopmoor was withholding consent unreasonably, and threatened proceedings. On 4 December Shopmoor’s the agents told NU they would recommend refusal since the subletting would be at a rent substantially below market value. NU sought summary judgment, asking for declarations that the delay in giving consent was unreasonable under section 1(3) of the Act, and that it was entitled to assign and to sublet. Summary judgment was given. Shopmoor appealed.
Held: In deciding whether a landlord was reasonable in not giving consent to an assignment, this should be looked at as at the time when the ‘reasonable period’ for considering and replying to the application expired. If it was then unreasonable to refuse consent, it remained unreasonable to give consent whatever followed. ‘In my judgment, however, the Act of 1988 has altered the law in this respect. It has done so by necessary implication, although not explicitly. The landlord has a statutory duty to the tenant within a reasonable time to give consent, except in a case where it is reasonable not to give consent. In judging whether it is reasonable not to give consent, the position must, in my view, be tested by reference to the state of affairs at the expiry of the reasonable time. If at that time, the landlord has raised no point and there is no point outstanding which could constitute a reasonable ground for refusal of consent, then it seems to me that the landlord’s duty is positively, as expressed by section 1(3), to give consent. The question whether the case is one ‘Where it is reasonable not to give consent’ ought, in my judgment, to be tested by reference to the point at which the reasonable time for dealing with the application has expired. If at that point it cannot be shown that it is reasonable for the landlord not to give consent, then the statutory duty of the landlord is to give consent, the court can so declare and the tenant can, in my judgment, proceed on the footing that the assignment in question would not constitute breach of a covenant not to assign without consent. Accordingly, whether or not Judge Paul Baker QC was correct in his statement of the law in 1984, a similar statement now made would, in my judgment, be a correct statement of the law. There seems to me to be every reason of common sense why that should be so. It would enable there to be fair and sensible dealing between landlords and tenants. It would enable a state of certainly to be achieved at the earliest sensible moment. There seems to me to be no reason of convenience why the ability of the landlord to still keep in doubt the entitlement of the tenant to assign should survive any longer than the reasonable time which the landlord may need for considering the tenant’s application for consent.’ and ‘The Act creates a statutory duty requiring landlords to attend promptly to applications for consent to assignments, or underletting or parting with possession of premises comprised in a tenancy where there is a covenant not to do those things without consent.
It has done so by necessary implication, although not explicitly. The landlord has a statutory duty to the tenant within a reasonable time to give consent, except in a case where it is reasonable not to give consent. In judging whether it is reasonable not to give consent, the position must, in my view, be tested by reference to the state of affairs at the expiry of the reasonable time. If, at that time, the landlord has raised no point and there is no point outstanding which could constitute a reasonable ground for refusal of consent, then it seems to me to me that the landlord’s duty is positively, as expressed by section 1(3), to give consent. The question whether the case is one ‘Where it is reasonable not to give consent’ ought, in my judgment, to be tested by reference to the point at which the reasonable time for dealing with the application has expired. If at that time it cannot be shown that it is reasonable for the landlord not to give consent, then the statutory duty of the landlord is to give consent, the court can so declare and the tenant can, in my judgment proceed on the footing that the assignment in question would not constitute breach of a covenant not to assign without consent’

Judges:

Sir Richard Scott VC

Citations:

[1999] 1 WLR 531

Statutes:

Landlord and Tenant Act 1988 1 2

Jurisdiction:

England and Wales

Citing:

Cited – City Hotels Group Ltd v Total Property Investments Ltd 6-Jul-1984
The landlords had received a request for a consent to a proposed assignment of the lease. They did not, in terms, refused consent, but had not given it notwithstanding a considerable passage of time and lengthy correspondence. The court was asked . .
Cited – 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 . .

Cited by:

Approved – Go West Ltd v Spigarolo and Another CA 31-Jan-2003
The tenant applied for a licence to assign the lease under section 1. The landlord refused consent, but the parties continued to negotiate. The tenant argued that the landlord’s continuation of negotiations showed the earlier counter-notice to have . .
Cited – Design Progression Limited v Thurloe Properties Limited ChD 25-Feb-2004
The tenant applied for a licence to assign. The landlord failed to reply, anticipating that delay would allow it to generate a better lease renewal.
Held: The delay was unreasonable and a breach of the landlord’s statutory duty, and was an act . .
Cited – Aubergine Enterprises Limited v Lakewood International Limited CA 26-Feb-2002
A sought confirmation that it had successfully rescinded a contract for the purchase of a leasehold property from L. Either party was to be able to rescind, if consent to the assignment had not obtained before three days before completion. There . .
Cited – NCR Ltd v Riverland Portfolio No.1 Ltd ChD 16-Jul-2004
The tenant complained that the landlord had unreasonably delayed approval of a proposed underletting.
Held: The court had to bear in mind that the consent was to an underlease, and that therefore there was no privity between the landlord and . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 05 April 2022; Ref: scu.179827

Smyth-Tyrrell and Another v Bowden: ChD 2 Feb 2018

Application for a declaration that the property is an agricultural holding within the meaning of the Agricultural Holdings Act 1986, and/or an order for a new tenancy pursuant to section 24 of the Landlord and Tenant Act 1954 of the property, and/or a declaration that the tenancy of the property continues and/or that the claimants are entitled to such interest as the court thinks fit by way of proprietary estoppel.

Citations:

[2018] EWHC 106 (Ch)

Links:

Bailii

Statutes:

Agricultural Holdings Act 1986

Jurisdiction:

England and Wales

Landlord and Tenant, Agriculture

Updated: 04 April 2022; Ref: scu.604202