Leases contained break clauses which the tenant purported to exercise. The landlord replied that they were ineffective because the tenant had not complied with his repair covenants. The dispute appeared settled after negotiations, and the settlement was embodied in an agreement. The tenant did not vacate the premises in time, and the landlord said the break clauses had not been exercied, and now appealed a finding that the settlement had varied the leases.
Held: The landlord’s appeal failed. The settlement agreement did nothing expressly to vary the terms of the lease, but focussed on the condition of the premises. The works agreed to be done included however works of re-instatement applicable only at the end of the lease period, and the sum agreed to be paid included a sum attributable to loss of rent. The term implied met the appropriate tests. Lloyd LJ (dissenting) Whilst this would leave an odd position if the lease did not terminate, it was not one lacking business efficacy, and the implied clause failed the officous bystander test.
Judges:
Sir Anthony Clarke MR, Sedley LJ, Lloyd LJ
Citations:
[2007] EWCA Civ 7
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Bairstow Eves (Securities) Ltd v Ripley CA 1992
The lease conferred on the tenant a right to break the leases on notice ‘if the tenant shall perform and observe all the covenants and obligations herein on the tenant’s part contained’. It had failed to repaint the premises during the year before . .
Cited – Fitzroy 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 . .
Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – Philips Electronique v British Sky Broadcasting Ltd CA 1995
There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon’s formulation, and . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – The Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
Cited – Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales 1982
(High Court of Australia) Mason J said: ‘The implication of a term is to be compared, and at the same time contrasted, with rectification of the contract. In each case the problem is caused by a deficiency in the expression of the consensual . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 22 August 2022; Ref: scu.248019
