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.’
Judges:
Paull J
Citations:
[1966] 1 QB 611
Statutes:
Citing:
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 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 – 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.
Landlord and Tenant
Updated: 30 April 2022; Ref: scu.234425