The tenant had entered into a covenant: ‘not to use the said premises for any purpose other than as a private dwelling-house And not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing of the landlord.’ He had in fact sub-let the top floor of the premises to the defendant as a self contained flat.
Held: The sub-letting of part of the demised premises was a breach of the covenant not to use the premises for any purpose other than as a private dwelling house.
Romer LJ set out and approved the approach of the County Court judge, saying: ‘He held that the covenant not to use the premises for any other purpose than as a private dwelling-house was an obligation on the tenant to use the premises for that purpose and for that purpose only and that it could not be said that she was complying with that obligation if she were using part of the dwelling-house as a private residence for herself, and was subletting another part to somebody else, even if that other person was using it, and was bound to use it, as a private residence.
The ground on which the judge arrived at that conclusion was that the phrase ‘a private dwelling-house’ envisages the use of the whole building as one dwelling-house, and therefore it creates a conception which is broken by, or is inconsistent with, the division of the house into more than one residence.’ He then said: ‘It seems to me, then, that one has to take this covenant as one finds it, and one finds that it is a covenant to use the premises for no other purpose than that of a private dwelling-house, and one finds, and it is not in dispute, that it has been used by the tenant, partly as a dwelling-house for her sub-tenant. That appears to me to be a plain breach of covenant, which is not rescued from being a breach of covenant by the conception to which I have referred, that she impliedly had the right to sublet that part of it.’ Harman J placed emphasis on the fact that the covenant to use as a private dwelling house was followed by a covenant not to sub-let the whole. He held that a covenant against sub-letting of a part was already provided for in the covenant not to use otherwise than as one single dwelling house. Evershed M.R. agreed with the construction of the County Court judge.
Judges:
Romer LJ, Evershed MR L, Harman J
Citations:
[1953] 1 QB 48
Cited by:
Applied – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 02 May 2022; Ref: scu.421519