Finch v Underwood: CA 1876

The landlord had covenanted with the tenant, on receipt of notice from the latter, to renew the lease ‘in case the covenants and agreements on the tenants’ part shall have been duly observed and performed’. Notice was duly given but the landlord refused to renew the lease because the interior of the property needed repairs at a cost of andpound;13. At first instance Malins VC found the want of repair was trifling, and for the tenant.
Held: The landlord’s appeal succeeded. Exact compliance with the terms of the option was needed. The case was one of compliance with a condition precedent.
James LJ said: ‘I think, moreover, that the Plaintiff, if otherwise entitled to a lease, would have lost that right by breach of the covenants to repair. No doubt every property must at times be somewhat out of repair, and a tenant must have a reasonable time allowed to do what is necessary: but where it is required as a condition precedent to the granting of a new lease that the lessee’s covenants shall have been performed, the lessee who comes to claim the new lease must shew that at that time the property is in such a state as the covenants require it to be. He can easily send in his builder, get a report of what repairs are necessary, and do them before he applies for the lease. There is no hardship in requiring this of him, and I think he is not entitled to excuse himself by saying that the want of repair is trifling. The answer to that is, ‘No matter; your bargain was to leave the property in thorough repair.’ If he has not fulfilled his legal bargain, which is also his bargain in equity, he cannot sustain his claim for a lease.’
Mellish LJ: ‘In a case like this, if a tenant wishes to claim the benefit of such a covenant he should send in his surveyor to see what repairs are needed, and should effect the repairs which the surveyor certifies to be requisite. The Court would be inclined to give credit to a survey thus honestly made, and would lean towards holding the condition precedent to have been complied with. But in the present case it is admitted that there was an existing breach of the covenant to repair.’
James LJ, Mellish LJ, Baggallay LJ
(1876) 2 Ch D 310
England and Wales
Cited by:
CitedUnited 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 . .
CitedBP 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 . .
CitedCommercial Union Life Assurance Co Ltd v Label Ink Ltd ChD 2001
An industrial warehouse was let for a term of 15 years. A clause contained an option for the tenant to break the lease on one year’s written notice on condition that: ‘There shall not be any material breach of the covenants on its part herein . .
CitedFitzroy 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 . .
Not helpful in this context.MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
CitedQuirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .

These lists may be incomplete.
Updated: 06 March 2021; Ref: scu.188167