Harbour Estates Limited v HSBC Bank Plc: ChD 15 Jul 2004

The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The defendant was entitled to exercise and did validly exercise the break clause. The purpose of section 63 was to avoid the necessity for conveyancers to provide extensive lists of the rights included in a conveyance: ‘one looks to see what, in terms of estates and interests, was the main corpus intended to be transferred and then, in the absence of an express contrary intention, one may give full literal effect to the words of the section. ‘ and ‘the section requires no investigation beyond whether the right is ‘in, to or on’ the land conveyed; it specifies no examination into whether the particular right or claim is appurtenant or annexed to or enjoyed with the main corpus . . or whether it ‘touches or concerns’ that main subject matter or even ‘has reference to’ it . . Nothing such is expressly required. Nor, one might think, would such a literal effect open any floodgates; the disponor only has to express a contrary intent in the disposition to deny such effect. ‘

Lindsay The Honourable Mr Justice Lindsay
[2004] EWHC 1714 (Ch), [2005] 2 WLR 67, [2004] 3 All ER 1057, [2005] 1 EGLR 107, [2005] Ch 194
Law of Property Act 1925 63 142(1)
England and Wales
CitedRe Stirrup’s Contract 1961
The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, . .
CitedRowe d. Bamford v Hayley 1810
The benefit of a break clause passes automatically with the term of the lease creating it. . .
CitedGriffith v Pelton CA 23-Jul-1957
Claim for declaration as to exercise of break clause in a lease. . .
CitedDavis v Town Properties Investment Corporation Ltd CA 20-Mar-1903
The scope of the landlord’s covenant for quiet enjoyment is limited by the fact that the owner of land adjoining the demised premises (which did not belong to the lessor at the date of the lease) might build on it at any time so as to interfere with . .
CitedPublic Trustee v Duchy of Lancaster CA 1927
The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself.
Held: The farm and the tithe rentcharge were two separate hereditaments and express . .
CitedThellusson v Liddard 1900
It was argued that section 63 of the 1881 Act operated to pass whatever estate, right or interest the conveying party had in the property there being considered at the date of the deed that was relevant in that case.
Held: Stirling J approved . .
CitedBerkeley Leisure Group Ltd v Williams and Others CA 1994
A right to claim rectification of the boundary of the land conveyed passed with the conveyance of the land itself. . .
CitedCedar Holdings Ltd v Green CA 1981
A property was held in the joint names of a former husband and wife. To obtain a loan for the husband, a legal charge over the property was executed by the husband, but he had another woman execute for the wife, pretending to be her. The chargee . .
CitedHill v Booth CA 1930
Despite its entanglement with a right of entry intended to procure its payment, a separate personal obligation to pay instalments of the sum agreed as the premium for a lease remained merely a personal obligation and that a call for the payment by . .
CitedHanbury v Bateman 1920
In the course of commenting on a discussion about the effect of section 63 of the 1881 Act: ‘The effect of the Act may be this, that a conveyance will have the effect of conveying every estate and interest which the person conveying can convey . . . .
CitedIrving v Turnbull QBD 1900
. .
CitedBoots the Chemist Ltd v Street 1983
The plaintiff sought rectification of its lease.
Held: The court ordered rectfication applying section 63(1): ‘I need not read any further. But [Counsel] submits, I think rightly so, that under that provision the transfer, which was a transfer . .
CitedKumar v Dunning and Another CA 15-Apr-1987
The court considered the effect of section 62 of the 1925 Act.
Sir Nicholas Browne-Wilkinson V-C said: ‘The main intention of Section 62 was to provide a form of statutory shorthand rendering it unnecessary to include such words expressly in . .
CitedP and A Swift Investments v Combined English Stores Group Plc HL 7-Jul-1988
The House was asked as to whether a covenant touched and concerned the land.
Held: Lord Oliver of Aylmerton said: ‘Formulations of definitive tests are always dangerous, but it seems to me that, without claiming to expound an exhaustive guide, . .
CitedGrant v Edmondson CA 1931
The distinctions required by the established rules as to whether a covenant ‘touches and concerns’ the land rules are quite illogical. . .
CitedSystem Floors Ltd v Ruralpride Ltd and Another CA 31-Oct-1994
A break clause was contained in an agreement not in the lease but in a side letter which made the benefit of the break clause personal to the original lessee but said nothing express as to whether the burden of the break clause passed to an assignee . .

Cited by:
CitedJBW 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.

Landlord and Tenant

Updated: 10 December 2021; Ref: scu.198839