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Landlord and Tenant - From: 1985 To: 1989

This page lists 104 cases, and was prepared on 02 April 2018.

 
Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] 1 Ch 340; [1985] 2 All ER 998; [1987] 1 EGLR 65
1985
CA
Slade LJ, Browne-Wilkinson J
Landlord and Tenant
Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment. Held: The lease had been in existence all the time, despite the "wrong" order for forfeiture. A person acting on the basis of a court order (even one later set aside) commits no wrong while the order is in force. A breach will only be treated as being irremediable where the consequences of that breach cannot be put right or retrieved for the future.
The court considered the doctine of waiver where rent was demanded and paid after a breach of covenant: "Though we have been referred to no authority binding on this court to this effect, I am also content for present purposes to assume, without finally deciding, that (as was held by Sachs J. in Segal Estates v. Thoseby) Mr. Neuberger is right in submitting that a demand for rent will, by itself, have the like effect." (Slade LJ, obiter)
Browne-Wilkinson J said: "If the case were otherwise, there would, in my judgment, be very great confusion. People must be entitled to act in pursuance of a court order without being at risk that they are thereby acting unlawfully. Public policy requires it. I am not in any sense casting doubt on, or seeking to cut down, those cases to which I have been referred which indicate that where a judgment is reversed, the objective of the court should be to put back the litigants into the position in which they should all along have been had the law been properly appreciated – cases such a Rodger. Those cases are concerned with reimbursing to the parties moneys lost as a result of the execution of the judgment by the payment of money. They are not cases, such as the present, in which it is sought to found a separate cause of action on the carrying out of the court order."
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Italica Holdings SA v Bayadea [1985] 1 EGLR 70
1985


Landlord and Tenant

Landlord and Tenant Act 1954 23
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Regina (Westminster City Council) v British Waterways Board [1985] 1 AC 476; [1984] 3 WLR 1047
1985
HL
Lord Bridge of Harwich
Landlord and Tenant, Planning
The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not get planning permission for the change of use (the tenant was also the planning authority). Held: The test was objective. Would a reasonable man, looking at the situation from the outside think there was a reasonable prospect of planning permission being given. The tenant's own occupation was not a legitimate planning objection, and the landlord had established a reasonable prospect of planning permission being granted. The House had to consider whether "the desirability of preserving an existing use of land may by itself afford a valid planning reason for refusing permission for a change of use": "As it seems to me, the preservation of an existing use (which is temporarily suspended) cannot afford a ground to refuse permission for an otherwise acceptable change of use, unless it can be shown that the refusal may reasonably be expected to lead to a resumption of the suspended use. This raises questions as to the true scope, for planning purposes, of the established existing use of the premises to which I must shortly revert . . . "In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will be effectively put to use A".
Lord Bridge of Harwich said: "So long as the mixture of uses on the premises, which the judge held to be the relevant planning unit, remain substantially unchanged, there would be no material change of use. Those uses, as already indicated, included workshops, offices, stores, messing facilities and parking for a variety of vehicles both under cover and in the open. This is just such a mixture of uses as would be required by a wide variety of undertakings whose business was the operation of some kind of vehicular transport and who required a base from which to operate. Whether, in any particular case, the proposed use of the premises by such an undertaking would involve a material change of use would depend on the detailed nature of the proposal. But it would be of no relevance to the use of the premises to inquire for what purpose the vehicles parked there were to be used when they left their base."
and "Before turning to the planning issues on which this appeal ultimately depends, it is necessary to dispose first of a question arising upon the construction of section 30(1)(g) of the Act of 1954. Since there has been no actual planning application by the respondents for permission to change the use of the premises and since we know that any such application would be refused by the appellants as local planning authority, what are the circumstances, necessarily hypothetical, in which the respondents' prospects of success in such an appeal to the Secretary of State must be considered? More particularly, are the respondents' prospects of success in such an appeal to be considered on the assumption that, when the Secretary of State has to decide the appeal, the respondents are entitled to possession of the premises and the appellants' occupation has ceased? My Lords, it seems to me that an affirmative answer to that question is inescapable. A landlord opposing the grant of a new tenancy under section 30(1)(f) or (g) seeks to establish what he intends to do "on the termination of the current tenancy." If the only obstacle to his implementing an admittedly genuine intention is a suggested difficulty in obtaining a necessary planning permission, the plain language of the Act of 1954 requires that his prospect of success in overcoming that difficulty should be assessed on the footing that he is entitled to possession . . I hope I do Walton J no injustice, but I find it difficult to resist the conclusion that he approached the planning issue on the assumption of an uninterrupted occupation of the premises by the appellants (which the grant of a new tenancy would, of course, in practice ensure) and failed to appreciate that the Act of 1954 requires, for this purpose, a hypothetical resumption of possession by the respondents to be assumed . . if the notional planning appeal is considered on the assumption that the respondent landlords are entitled to resume possession, the continued use of the premises for the purpose for which they are presently used by the appellant tenants is by no means an inevitable consequence of the refusal of permission . . The Court of Appeal . . correctly approached the question of the respondents' prospects of success in a notional planning appeal on the basis of an assumed entitlement to possession . . For my part, I find it difficult to see how [Westminster's] argument can be sustained at all, once it is appreciated that the respondents' prospects of success in a notional planning appeal must be considered on the assumption that they, not the appellants, are in possession."
Landlord and Tenant Act 1954 30(1)(g)
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Cobstone Investments Limited v Maxim [1984] QB 140; [1984] 2 All ER 635; [1984] 3 WLR 606
1985
CA
Dunn LJ, Wood J
Landlord and Tenant, Housing
The court considered the meaning of 'adjoining occupiers' The tenant suggested that the word " adjoining" should be read literally so that the premises must be contiguous in the sense of physically joining, or being co-terminous with the holding of the tenant whose conduct was complained of. It was submitted that adjoining did not mean neighbouring. Held: The submissions failed. Dunn LJ (with whom Wood J agreed) accepted as an accurate statement of the law a passage in the 10th Edition of Megarry on the Rent Acts: "The word ´adjoining' has been construed as meaning ´contiguous' so that the occupants of a second floor flat have been held not to be ´adjoining occupiers' to the ground floor flat beneath them. But this seems too strict a view; for one meaning of the word is ´neighbouring' and all that context seems to require is that the premises of the adjoining occupier should be near enough to be affected by the tenant's conduct on the demised premises" Wood J added that: "In my judgment the meaning of the word ´adjoining' is not restricted to the meaning of ´contiguous'. Each case must depend on the facts as found by the judge trying the action. It is a question of degree. There may be other ways of approaching the issue, but it may be useful to consider it in this way; namely whether the relevant premises are sufficiently close or related, so that the behaviour or conduct of the tenant of the one affects the access to, or occupation or enjoyment of the other by its occupier."
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Mark Rowlands v Berni Inns Ltd [1986] 1 QB 211; [1985] 3 All ER 473; [1985] 2 Lloyds Rep 437; [1985] 3 WLR 964; [1986] ANZ Conv R 501
1985
CA
Kerr LJ
Insurance, Landlord and Tenant
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building occupied by the defendant, and did pay such rent. The building was destroyed by fire caused by the negligence of the defendant. The insurer paid the plaintiff the sum due under the policy and brought an action in the name of the plaintiff to recover its outlay from the defendant. The defendant was not named as a co-insured in the relevant insurance policy. The issue came to whether the tenant had an interest in the landlord’s fire insurance policy and an insurable interest in the premises which were destroyed by fire. Held: “this ancient statute”, Section 2 of the 1774 Act (which makes it unlawful not to name, as the tenant was not named, “the person interested” in a policy to which the Act applies) had no application to indemnity insurance but only to insurances which provide for the payment of a specified sum upon the happening of an insured event. Lucena was the classical definition of an insurable interest.
Kerr LJ said: "The intention of the parties, sensibly construed, must therefore have been that in the event of damage by fire, whether due to accident or negligence, the landlord’s loss was to be recouped from the insurance moneys and that in that event they were to have no further claim against the tenant for damages in negligence. Another way of reaching the same conclusion, on which Mr. Harvey also relied, is that in situations such as the present the tenant is entitled to say that the landlord has been fully indemnified in the manner envisaged by the provisions of the lease and that he cannot therefore recover damages from the tenant in addition, so as to provide himself with what would in effect be a double indemnity. Although the receipt of insurance moneys by an innocent party is of course normally no defence to a wrongdoer (see Bradburn v. Great Western Railway Co. (1874) LR 10 Ex 1), Mr. Harvey relied on a number of passages in Parry v. Cleaver [1970] AC 1, 13 to show that considerations of "justice, reasonableness and public policy" (per Lord Reid) may require exceptions to this general principle. I do not think it necessary to elaborate upon this line of argument in the present case save to say that I accept it and regard it as complementary to the conclusion which is to be derived from the construction and effect of the terms of the lease itself, as indicated above." and (after citing canadian authorities) "In each of the cases the minority concluded that the absence of any provision expressly or impliedly exonerating the tenant from negligence was fatal, but the majority view was that there was no need for any such provision, since it was sufficiently clear from the terms of the leases and the landlords' covenant to insure against fire, including fire caused by the tenants' negligence, that the landlord could not maintain an action for negligence against the tenants, and that the landlords' insurers' right of subrogation could therefore equally not be enforced."
Insurance Act 1774 2
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Peyman v Lanjani [1985] 1 Ch 457; [1985] CL 457
1985
CA
Stephenson LJ, May LJ
Estoppel, Landlord and Tenant
Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his election if, when he made it, he was aware of facts which entitled him to rescind the contract, but had no knowledge that those facts gave him the right in law to rescind. Held: For the purposes of the common law doctrine of election, where a person has an unrestricted choice between two mutually inconsistent courses of action which affect his rights, knowledge of the right to elect is a pre-condition of making an effective election, and there can be no effective election unless the person making it knows his legal rights as well as the facts giving rise to those rights. An estoppel must be based upon an informed choice, but: "When a party has legal advice, he will be more easily presumed to know the law and evidence or special circumstances may be required to rebut the presumption."
May LJ said: ""The next feature of the doctrine of election in these cases which in my opinion is important is that when the person entitled to make the choice does so one way or the other, and this has been communicated to the other party to the contract, then the choice becomes irrevocable even though, if and when the first person seeks to change his mind, the second cannot show that he has altered his position in any way.
This being so, I do not think that a party to a contract can realistically or sensibly be held to have made this irrevocable choice between rescission and affirmation unless he has actual knowledge not only of the facts of the serious breach of the contract by the other party which is the pre-condition of his right to choose, but also of the fact that in the circumstances which exist he does have that right to make that choice which the law gives him."
Stephenson LJ said: "I therefore feel free to follow the decision of this court in Leathley v John Fowler & Co Ltd [1946] KB 579 and to hold that knowledge of the facts which give rise to the right to rescind is not enough to prevent the plaintiff from exercising that right, but he must also know that the law gives him that right yet choose with that knowledge not to exercise it."
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 Street v Mountford; CA 1985 - [1985] 4 P and CR
 
Regina v Rent Officer of Nottinghamshire Registration Area, ex parte Allen (1985) 275 EG 251; (1985) 17 HLR 481; [1985] 2 EGLR 153
1985

Farquharson J
Housing, Landlord and Tenant
The officer had entered a fair rent for a caravan. The site owner sought the vacation of the entry. The caravan was fully mobile, but was also connected to mains water and electric and sewage. The connections were easily removed, and the caravan was from time to time moved. Held: Whether a caravan counted as a house within the section depended upon the circumstances. The fact that the caravans were sometimes moved, and the impermanence of the connections to the mains utilities took them outside the section. A county court judge can make a declaration as to whether a tenancy is protected under the Act (s 141(1)(a)), but cannot order an alteration in the register. A landlord wanting to challenge a proposed registration should do so quickly, so that the Officer could delay making the entry.
Rent Act 1977 1 141(1)(a)

 
Cresswell v Duke of Westminster [1985] 2 EGLR 151
1985
CA
Sir John Donaldson MR
Landlord and Tenant
"Where we draw the line I do not know, I doubt whether it is in anybody’s interest that I should attempt to draw that line. Many cases will answer the question on their own facts."
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British Petroleum Pension Trust v Behrendt [1985] 2 EGLR 97
1985
CA

Landlord and Tenant
The tenant had been held by the judge to have known of the use by his sub-tenant of the premises as a brothel, or at best to have shut his eyes deliberately to it. Held: Although the subtenant had been removed, the breach was not remediable and the continued presence on the premises of the tenant who had knowingly suffered the prostitution to take place continued the stigma on the premises. A breach of covenant involving an illegal or immoral use is not capable of remedy so as to allow relief from forfeiture.
1 Citers


 
Official Custodian for Charities v Parway Estates Developments (In Liquidation) [1985] Ch 151
1985
CA
Dillon LJ
Landlord and Tenant, European
The consideration for the grant of a lease was not a capital sum, but substantial building works. Application was made for its forfeiture. Held: Dillon LJ assumed that the words "if the tenant shall enter into liquidation whether compulsorily or voluntarily" in a re-entry clause in a lease refer to the making of the winding up order.
Save in relation to non-payment of rent, the power to grant relief from forfeiture to lessees is now exclusively contained in section 146 of the Law of Property Act 1925.
Dillon LJ said in relation to section 9(3) and (4) of the 1972 Act: "The question then is whether, even so, it is implicit in section 9 (4), or necessary in order to give effect to section 9 (4), that, after an official notification of an event has become fully effective, all persons must be treated as having constructive notice of that event. Three matters can be urged in support of the argument, viz.: (i) if an event has not been officially notified a company can still rely on it against a person who has actual knowledge of it, and so official notification is in a sense treated as the counterpart of actual knowledge, in enabling the company to rely on the event; (ii) during the period of grace before the official notification has become fully effective, the person concerned can prevent the company relying on the event by showing he was unavoidably prevented from knowing of the event, absence of the event being treated in the period of grace as countervailing the official notification: and (iii) it is difficult to think of the circumstances in which a company will wish to rely as against a third party on the happening of the event of its own liquidation and in which the real issue will not be the third party's knowledge of that event rather than the happening of the event itself.
This question whether official notification of a relevant event constitutes notice of that event to all the world, is an important question. If indeed the notification does constitute notice at all, the very many landlords who are not in the habit of studying the London Gazette regularly of effecting regular searches of the files of their company tenants in the Companies registry will be at risk of inadvertently waiving the forfeiture of leases by accepting rent after the company tenants went into liquidation.
The deputy judge, after considering the wording of section 9(4) and views expressed in Palmer's Company Law 23rd ed., vol. 1, pp. 184, 185 - 186, concluded that subsection (4) did not impute knowledge to anyone. It was essentially negative in its impact. It provided that a company cannot rely upon a relevant event if it is not in the Gazette but it did not make the positive counter proposition that a company can rely upon that event - sc. it can rely upon everyone having notice of that event - merely because it is in the Gazette. I agree with the deputy judge's analysis of the subsection and with his conclusion.
I would add two further comments. In the first place, I do not think that the link, such that it is, in section 9(4), between official notification of a relevant event, and actual knowledge of the event if it has not been officially notified, requires that official notification should be treated as importing notice of the event to everyone. The object of the legislation is that persons dealing with a company should be officially given an opportunity to finding out important information concerning the company vis-a-vis those who have actual knowledge of the relevant event. Hence the qualification of the restriction imposed by the subsection of the company. It is not necessary to treat official notification as the equivalent of actual knowledge in all circumstances.
In the second place, among the events, other than liquidation and the appointment of a liquidator, listed in section 9(4) as events on which a company cannot rely in the absence of official notification are making of any alteration in the memorandum of association of the company, including, of course, its object clause, and the making of any change among the company's directors. But it is plain to my mind from section (9)1 that a person dealing in good faith with a company is not to be treated as having constructive notice (as under the previous ultra vires doctrine of English law) of the terms of the company's objects clause, whether in its original form or as from time to time altered, and is not to be treated as having constructive notice of the composition from time to time of the Old Aachener Re board of directors of the company. The tenor of the section is thus against imputing constructive notice of the relevant events to persons dealing with a company, while ensuring that they have an opportunity to find information about those events."
European Communities Act 1972 9(3) 9(4) - Law of Property Act 1925 146
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Collin v Duke of Westminster [1985] 1 QB 581
1985
CA
Oliver LJ, May LJ and Sir Roger Ormrod
Landlord and Tenant, Contract, Limitation
In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord's contention appeared correct. The leaseholder proceeded no further. In 1980 the law was clarified so as to indicate that he was so entitled, and in 1981 he sought to proceed with his claim. The landlord's contention that he had abandoned it failed at first instance. Held: The tenant's appeal failed. Oliver LJ: "As regards abandonment [the judge] held – and in my judgment he was clearly right in this – that in order to succeed the trustees had to show either some reliance and change of position amounting to an estoppel (of which there was no suggestion) or what amounted in effect to a contract for mutual release. Quite clearly there was no question of an express contract and what he had, therefore, to look for was whether there was material from which mutual promises could be implied. On the facts, he found himself unable to find any mutual release but, perhaps even more importantly, he held that the Act of 1967 and the regulations provided, as it were, a complete statutory code which regulated exclusively how the statutory contract of sale was to be either completed or discharged and that there was no room for the application of the common law concept of inferred abandonment by mutual consent.
With respect to the judge, I doubt whether this latter conclusion can be right. . . As he rightly pointed out there is, in the law of contract, no room for a concept of unilateral abandonment. What the court has to look for is . . . material from which there can be inferred mutual releases or mutual promises not to proceed. In other words…there has to be established, if only by inference, a fresh contract which has the effect of dissolving the relationship originally entered into by the parties and upon which one party still seeks to rely. Now tenants who are entitled to enfranchise under the Act of 1967 are not permitted to contract out of their entitlement, but there is nothing in the Act which prevents them, once their right of enfranchisement has accrued, from releasing contractually the immediate right of enfranchisement which they have acquired by serving a notice under the Act." The court agreed with the judge's alternative conclusion that on the facts of the case there was no material from which mutual releases could be inferred.
The essence of a specialty is a covenant under seal or an obligation imposed by statute.
Leasehold Reform Act 1967 - Limitation Act 1980
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Liverpool Properties Ltd v Oldbridge Inmvestments Ltd [1985] 2 EGLR 111
1985
CA

Landlord and Tenant
The court considered the position after a tenant has been served with a writ claiming re-entry under a lease and the date of possession is unclear.

 
Abbey National Building Society v Maybeech Ltd and another [1985] Ch 190; [1984] 3 All ER 262
1985


Landlord and Tenant
When granting a tenant relief from forfeiture, the court has an equitable discretion as to the order it makes including as to costs, and so as to fill in any gaps left by legislation.


 
 Henderson v Law; CA 1985 - (1985) 17 HLR 237
 
Duke of Westminster v Guild [1985] QB 688
1985
CA
Slade LJ
Landlord and Tenant
The court was asked whether a landlord was obliged to repair a drain serving the demised premises which passed under the landlord's retained land. Held: No such obligation could be implied and it did not fall within the scope of the covenant for quiet enjoyment. Slade LJ said: "The express covenant for quiet enjoyment and implied covenant against derogation from grant cannot in our opinion be invoked so as to impose on [the plaintiffs] positive obligations to perform acts of repair which they would not otherwise be under any obligation to perform." and
"The subject of the dispute, that is the landlords' part of the green drain, is property in respect of which the tenant enjoys an easement of drainage governed by the general law of easements. It is well settled that the grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment: Jones v Pritchard [1908] 1 Ch 630, 638, per Parker J. In our opinion, therefore, it is plain that the tenant would have the right, when reasonably necessary, to enter the landlord's property for the purpose of repairing that drain and to do the necessary repairs. In contrast, however, it is an equally well settled principle of the law of easements that, apart from any special local custom or express contract, the owner of a servient tenement is not under any obligation to the owner of the dominant tenement to execute any repairs necessary to ensure the enjoyment of the easement by the dominant owner; apart from special local custom or express contract, the law will ordinarily leave the dominant owner to look after himself: see Gale on Easements, 14th ed. (1972), p47 and Holden v White [1982] QB 679,683-684 per Oliver LJ."
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Sopwith v Stutchbury (1985) 17 HLR 50
1985
CA
Stephenson LJ, Kerr LJ
Landlord and Tenant
The prospective tenant moved into the dwelling-house before the terms had been finalised. The court was asked as to his status between entering and the execution of the tenancy agreement. Held: He was a mere licensee.
Stephenson LJ said: "The question, of course, is, taking into account all the circumstances, what is the right conclusion to draw? Under what right, in what legal relationship, was this occupation of A's land by B? Many recent cases are opposed to a too facile assumption that because something called 'rent' is accepted, or even accepted as rent, by the party owning the land, that necessarily implies a tenancy. It is always a question of the intention of the parties, and in these days, where owners of property are unable to evict those who occupy their property under the statutory protection to which I have referred, it is not at all easy to infer, by the acceptance of rent from the protected tenant, the creation of a new tenancy: see Longrigg, Burrough & Trounson v Smith (1979) 251 EG 847, [1979] 2 EGLR 42. That, of course, is a consideration strongly applicable to the payment of rent by persons who are let into property and then staying on in it; it is not so strongly applicable to persons who are let into property for the first time. Nevertheless, it is something to be borne in mind in a case where, as here, a person is let into property for the first time, and let into property by a businessman acting through an obviously experienced manager."
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Lowther v Strandberg [1985] 1 EGLR 203
1985
LT

Landlord and Tenant

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Post Office v Aquarius [1987] 1 All ER 1055; (1985) 276 EG 923
2 Jan 1985
CA
Ralph Gibson LJ, Slade LJ
Landlord and Tenant
The tenant’s covenants included an obligation "to keep in good and substantial repair . . the demised premises and every part thereof." Held: A repairing covenant does not require a defect in design to be made good. One cannot have an existing obligation to repair unless and until there is a disrepair.
Slade LJ said: “In these circumstances, there would in my opinion have been no grounds on which the judge could properly have held that the words of the repairing covenant quoted above imposed any present obligation on the tenants to do work to the premises. Counsel for the landlords suggested that any such decision would conflict with the principle established by Proudfoot v Hart (1890) 25 QBD 42, [1886-90] All ER Rep 782 that a tenant’s covenant to keep premises in good repair obliges the tenant, if the premises are not in good repair when the tenancy begins, to put them into that state. However, as he accepted in the course of argument, the relevant statements of the law in that case were only directed to the case where the condition of the premises has deteriorated from an earlier better condition. They were not directed, and in my judgment have no application, to a case such as the present where the structural defect complained of by the landlords has existed from the time when the premises were originally built. Though counsel for the landlords sought to draw a distinction in this context between structural defects due to errors in design and those due to faulty workmanship, I can see no grounds on principle or authority for drawing any such distinction.”
Gibson LJ said that: The reference in Quick's case to deterioration or damage, such as the statement by Lawton LJ that 'that which requires repair is in a condition worse than it was at some earlier time', or that of Dillon LJ that a covenant to repair the structure or exterior 'will only come into operation where there has been damage to the structure and exterior which requires to be made good' are not to be taken as applicable to a case of this nature, and their Lordships in Quick's case did not have such a case as this in mind. In particular, they were not dealing with a case like this where the defective part of the premises is such that it has and may again interfere with the ordinary use and occupation of the premises contemplated by the demise and, having been caused by defective work, was 'worse' than it was required to be if that part of the premises was to be regarded as in good repair.
For my part I am unable to accept the submission made by counsel for the appellant landlords. The facts of this case seem to me to be, as I have said, highly unusual. I found it at first to be a startling proposition that, when an almost new office building lets ground water into the basement so that the water is ankle deep for some years, that state of affairs is consistent with there being no condition of disrepair under a repairing covenant in standard form whether given by landlord or tenant. Nevertheless, as was pointed out in the course of argument, the landlord of such a building gives no implied warranty of fitness merely by reason of letting it; and neither a landlord nor a tenant, who enters into a covenant to repair in ordinary form, thereby undertakes to do work to improve the demised premises in any way. I see no escape from the conclusion that, if on the evidence the premises demised are and at all times have been in the same physical condition (so far as concerns the matters in issue) as they were when constructed, no want of repair has been proved for which the tenants could be liable under the covenant.
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 Rosler v Rottwinkel; ECJ 15-Jan-1985 - R-241/83; [1985] EUECJ R-241/83; [1986] QB 33
 
Ladup Ltd v Williams and Glyn's Bank PLC [1985] I WLR 851
25 Jan 1985

Warner J
Landlord and Tenant
A court granting relief from forfeiture has an inherent jurisdiction to grant relief against forfeiture for non-payment of rent regardless of who the person was to whose detriment the forfeiture would operate. The court could grant relief to an equitable chargee under this jurisdiction.


 
 Street v Mountford; HL 6-Mar-1985 - [1985] 1 EGLR 128; [1985] 2 All ER 289; [1985] 2 WLR 877; [1985] AC 809; [1985] UKHL 4
 
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 59 ALJR 373; (1985) 57 ALR 609; (1985) 157 CLR 17; [1985] HCA 14
12 Mar 1985

Mason, Wilson, Brennan, Dean and Dawson JJ
Commonwealth, Landlord and Tenant
Austlii (High Court of Australia) Landlord and Tenant - Torrens system land - Unregistered lease - Effect - Covenant to pay rent - Breach - Re-entry - Right of landlord to damages for loss of benefit of covenant - Fundamental breach - Repudiation.
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[ Austlii ]
 
Eastleigh Borough Council v Walsh [1985] UKHL 12; [1985] 1 WLR 525; (1985) 17 HLR 392; 83 LGR 525; [1985] 2 All ER 112
28 Mar 1985
HL
Lord Scarman, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brightman, Lord Templeman
Housing, Landlord and Tenant
The defendant had been allowed into the property under the homelessness legislation. The authority now sought possession. They said he had a licence only, but he claimed to have a secure tenancy. Held: The authority had made a mistake, and the defedant was a secure tenant. The letter offering him the property, and his receipt for the keys, had said that a tenancy was being granted.
Housing Act 1980 - Housing (Homeless Persons) Act 1977
[ Bailii ]
 
Expert Clothing Service and Sales Ltd v Hillgate House Ltd and Another [1985] EWCA Civ 4
2 Apr 1985
CA
Slade LJ, O'Connor LJ
Landlord and Tenant
Slade LJ said that the breach of a positive covenant would ordinarily be capable of remedy. Ordinarily . .but not always. Slade LJ noted that, for instance, the burning down of the premises during a period of the tenant's failure to insure would be irremediable. So, no doubt, would be their collapse by reason of a failure to repair.
O'Connor LJ said: "To stop doing what is forbidden by a negative covenant may or may not remedy the breach even if accompanied by compensation in money. Thus to remove the window boxes and pay for the repair of any damage done will remedy the breach, but to stop using the house as a brothel will not, because the taint lingers on and will not dissipate within a reasonable time."
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[ Bailii ]

 
 International Drilling Fluids v Louisville Investments (Uxbridge) Ltd; CA 20-Nov-1985 - [1986] Ch 513; [1985] EWCA Civ 3; [1986] 1 EGLR 39; [1985] EWCA Civ 11

 
 Mancetter Developments Ltd v Garmanson Ltd and Another; CA 20-Dec-1985 - [1985] EWCA Civ 2; [1986] 1 QB 1212; [1986] 1 EGLR 240; [1986] 2 WLR 871; [1986] BCC 98; [1986] 1 All ER 449; [1986] 1 FTLR 393; [1986] BCLC 196
 
Cardiothoracic Institute v Shrewdcrest Ltd [1986] 1 WLR 368; [1986] 2 EGLR 57; [1986] 3 All ER 633
1986
ChD
Knox J
Landlord and Tenant
The landlord hoped to redevelop a site. The defendant was in possession as a business tenant pursuant to three successive leases for which orders had been made under section 38(4) of the 1954 Act excluding the operation of sections 24 to 28 of the Act. The last of the three leases expired on October 31 1983. The parties were then involved in a succession of negotiations for a series of extensions. The defendant paid rent monthly in advance, in general accordance with the terms of the successive extensions. Held: Where an agreement required an application first to court for an exclusion of protection under the 1954 Act, each side would, until such a hearing, be free to turn away from the transaction. The continuing negotiations meant that this remained a tenancy at will. Once the court took into account the parties' knowledge of the operation of the 1954 Act, it was clear that they did not intend to create a periodic tenancy pending the grant, which both sides anticipated, of a tenancy approved by the court under section 38. Nor was there any compelling reason why the court should impute such an intention to them if, as was factually perfectly possible, they gave no serious thought to the legal repercussions of the payment and acceptance of rent.
Knox J said: ". . . there is, in my judgment, implicit in a condition that the tenancy agreement negotiated between the parties should be subject to the making of a court order under section 38(4) of the 1954 Act, a term that unless and until the court order is obtained no legally binding grant or acceptance of the tenancy should be made."
Landlord and Tenant Act 1954
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Tetley v Chitty [1986] 1 ALL ER 663
1986


Landlord and Tenant, Nuisance
A local council had granted planning permission to a go-kart club to develop a go-kart track on land owned by the authority, and had granted the club a seven year lease to use it for that express purpose. Held: The council were held liable in nuisance for noise arising from the use of the track. A clause in the lease requiring the tenant not to commit a nuisance did not excuse the Council landlord.
1 Citers


 
Brett v Brett Essex Golf Club [1986] 278 EG 1476
1986
CA

Landlord and Tenant
Land was let for use as a golf course. In the first term, the tenant erected a club house and laid the course. A subsequent lease extended the term and expanded the area to include a neighbouring 9 hole course, and included a rent review clause which required the rent to be set by reference to the 1974 Act. The issue was as to how the club-house and other works were to be included in the valuation. Held: s34 allowed for a disregard only for the works carried out in the current lease. The club-house and 9-hole course were to be included. They were not voluntary improvements, and the 'demised premises' were the premises on the grant of the second and current lease.
Landlord and Tenant Act 1974 34
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Lower Street Properties Ltd v Jones [1996] 48 EG 154; [1996] 28 HLR 877
1986
CA
Kennedy LJ, Phillips and Schiemann LJJ
Landlord and Tenant
The tenant complained both that her tenancy was a periodic assured tenancy acquired on succession, and that the termination notice given to her was invalid. LSP had granted an assured shorthold tenancy to C, and J was her statutory successor. The notice to terminate gave no date on which the tenancy was to end, but was said to expire 'at the end of the period of your tenancy which will end after the expiry of two months from service' of the notice. Held. J was the statutory successor, but held only an assured shorthold. A notice of possession had to state the date on which possession was required, which had to be the last day of the tenancy, and that must be not less than two months before the notice was served. The notice had referred to the last day with sufficient specificity because it could readily be ascertained by calculation.
Kennedy LJ said: "Because of the wording of section 21(4) if an actual date is to be given in the notice it must be 'the last day of the period of the tenancy' and there is an obvious risk of a minor arithmetical error giving rise to the argument that the notice is invalid which no doubt is why the printed form suggests as a possible form of wording that the notice will expire 'at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice'."
In an assured tenancy, proceedings should not be issued until the notice period had properly expired. In this case they were premature.
Housing Act 1988 20 21(1)
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British Bakeries (Midlands) Ltd v Michael Testler [1986] 1 EGLR 64
1986
ChD
Peter Gibson J
Landlord and Tenant
Peter Gibson J discussed the refusal of a landlord's consent to an assignment: "In my judgment, where, as here, a refusal of consent to an assignment is based on a number of reasons, the fact that one of those reasons is bad will not normally render the refusal unreasonable, assuming that the other reasons are good. As the observation in Berenyi and British Bakeries suggests, it seems to me that, ultimately, it is a question of considering the covenant and the refusal of consent in each case. Thus, it may be clear that the bad reason is by far the most important reason, and that the purportedly good reasons were merely makeweights; or it may be that the existence of the bad reason infects or vitiates what would otherwise, in the absence of the bad reason, be a good reason. However, in the absence of such special factors, I consider that what was agreed in British Bakeries, was stated, albeit obiter and inferentially, by Slade LJ in Bromley, and appears to have been assumed in International Drilling, represents . . the law . ."
Peter Gibson J cited the following agreed principle: "If a landlord has a good reason and a bad reason for withholding consent, consent may nevertheless have been reasonably withheld if the good reason is sufficient reason and is not otherwise vitiated by the bad reason."
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 Peabody Donation Fund v Hay; CA 1986 - [1986] 19 HLR 145

 
 Pittalis v Sherefettin; CA 1986 - [1986] 1 QB 868
 
Rapid Results College Ltd v Angel [1986] 1 EGLR 53
1986
CA
Dillon LJ
Landlord and Tenant
There is no presumption in construing a lease that the service charge provisions will enable the landlord to recover all of his expenditure.
1 Citers



 
 King v Liverpool City Council; CA 1986 - [1986] CLY 2260; [1986] 3 All ER 544; [1986] 1 WLR 890; [1986] 1 EGLR 181; (1986) 84 LGR 871
 
William Hill (Southern) Limited v Cabras [1986] 54 P&CR 42
1986
CA
Nourse LJ
Landlord and Tenant
The tenant had affixed a sign to the premises with the landlord's consent. The new landlord said that any licence was revocable. The judge had held that the lease had specifically granted a right to exhibit the signs. Held: The landlord's appeal was dismissed. The right to maintain the signs was in the demise of the appurtenances to the demised premises, and 'together with the appurtenances thereto in clause 1(a) could not, in the context of the present lease, be treated as mere surplusage. Bearing in mind the permitted use of the premises and the practical and commercial considerations, it was to be supposed that the appurtenances included the right to maintain the signs. That view was not invalidated by clause 3 which did not refer to appurtenances as such and which made express exception to the rights specifically granted by the lease. Further, applying the general principle that the grantor shall not derogate from his grant, the court would not construe a general provision, most of all an exception in very general terms, such as that in clause 3, to take away that which had already been granted in the dispositive provisions of the lease."
Nourse LJ said: "There was some debate as to whether it could be said that the appurtenances were specifically granted on the ground that the word is an entirely general one. However, I do not think there is much in that point. The appurtenances were clearly granted expressly and I think that is enough, particularly when the general principle to which I now come is borne in mind." and
"Mr Sparrow submits that the court will not construe a general provision in a lease, particularly an exception and most of all an exception couched in very general terms such as those in clause 3, so as to take away with the other hand that which has already been granted by the one hand in the dispositive provisions of the lease. Although Wheeldon v Burrows was a case on implied rights, I accept Mr Sparrow's proposition with regard to the construction of express rights, it being, as Thessiger LJ said, consonant to reason and common sense and also, I would add, to the commercial realities of a case such as this."
Prescription Act 1832
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 Watson v Goldsborough; CA 1986 - [1986] 1 EGLR 265
 
London and Associated Investment Trust Plc v Calow [1986] 2 EGLR 80; [1987] 53 P & CR 340; [1986] 280 EG 1252
1986

Paul Baker QC J
Landlord and Tenant
The defendants had sought premises for a consulting business. A licence was initially given to allow the premises to be prepared for occupation, but then a head lease was granted. An underlease for the defendant was prepared, but not executed. On the defendant leaving, the claimants said that the defendant was bound as tenant to pay the balance of the rent haiving taken exclusive occupation on the terms of he draft lease. Held: The occupation had all the characteristics of a tenancy, and the principles in Street v Mountford applied also to commercial lettings. It was a tenancy.
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Bretherton v Paton [1986] 1 EGLR 172; (1986) 278 EG 615
1986
CA

Land, Landlord and Tenant
The parties intended to sell and buy a property. The defendant was allowed into possession pending the arrangement of a mortgage and exchange of contracts. The sale fell through and the owner sought possession. The defendant had paid outgoings and a small amount of rent and claimed a tenancy following Street v Mountford. Held: The court refused the owner's appeal against the finding that a tenancy had been created. There existed an enforceable contract giving exclusive possession for a rent for a periodic term. The possibility of a contract for the sale of the property was not enough to displace the found intention to create a tenancy.

 
Charles Follett Limited v Cabtell Investments Limited [1986] 2 EGLR 76
1986


Landlord and Tenant
On a lease renewal under the 1954 Act the previous lease had had no rent review. Held: When the new lease was to contain a rent review clause it could be an upwards/downwards clause.

 
British Gas Corporation v Universities Superannuation Scheme [1986] 1 All ER 978; [1986] 1 WLR 398
1986
ChD
Browne Wilkinson VC
Arbitration, Landlord and Tenant
The lease had a five yearly rent review, to be the highest of the current rent the rack rental value at the relevant rate. The rack rent was calculated under a hypothetical lease containing the same provisions (save for rent). The tenant sought a declaration that this was to exclude only the rental value, not other provisions as to rent. Held: The lease was to be construed according to its underlying commercial purpose, and the review should assume a lease containing the same review provisions. As to the general purpose of a rent review clause: "There is really no dispute that the general purpose of a provision for rent review is to enable the landlord to obtain from time to time the market rental which the premises would command if let on the same terms on the open market at the review dates. The purpose is to reflect the changes in the value of money and real increases in the value of the property during a long term."
1 Citers


 
Quick v Taff Ely Borough Council [1986] QB 809; [1985] 3 All ER 321; [1985] EWCA Civ 1; 18 HLR 66; [1985] 3 WLR 981; 276 EG 452; [1985] EGLR 50; 84 LGR 498
1986
CA
Lawton LJ, Dillon LJ, Neill LJ
Landlord and Tenant, Housing
Because of fungus, mould growth and dampness, the tenant's council house was virtually unfit for human habitation in the winter when the condensation was at its worst. Section 32(1) of the 1961 Act implied in the tenancy a covenant by the council to keep in repair the structure and exterior of the dwelling-house. Section 32(3) provided that, in determining the standard of repair required by the lessor's repairing covenant, regard is to be had to the age, character and prospective life of the dwelling-house and the locality in which it is situated. The house was built in accordance with the regulations in force and standards accepted at the time it was built. Held: A landlord of a dwelling-house is obliged by a repairing covenant only to restore the house to its previous good condition. He does not have to make it a better house than it originally was. Dillon LJ said that: "disrepair is related to the physical condition of whatever has to be repaired and not questions of lack of amenity or inefficiency."
Housing Act 1957 6 - Housing Act 1961 32(1)
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[ Bailii ]

 
 Department of the Environment v Royal Insurance PLC; ChD 1986 - [1986] 54 P&CR; [1987] 1 EGLR 83
 
Pinkerton v Pinkerton [1986] SLT 672
1986
OHCS
Lord Mackay of Clashfern
Scotland, Landlord and Tenant
An agreement by A to let a farm to himself, his wife and two sons was a valid lease which gave security of tenure. the Landlord and tenant were sufficiently different for a valid agreement between them to be possible.
1 Citers



 
 James and Others v The United Kingdom; ECHR 21-Feb-1986 - 8793/79; (1986) 8 EHRR 123; [1986] ECHR 2; Series A no 98; [1986] RVR 139; (1986) 8 EHRR 123123
 
Crancour Ltd v Da Silvaesa and Another [1986] EWCA Civ 1; [1986] 1 EGLR 80; [1986] 52 P&CR 204; [1986] 18 HLR 265; [1986] 278 EG 618
26 Feb 1986
CA
Purchas LJ, Ralph Gibson LJ, Nicholls LJ
Landlord and Tenant
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be tenants with protection. Held: The tenants' appeal against summary orders for posession were successful, and the cases remitted to the county court for trial. Though such matters dealt largely with the legal assessment of dicuments, that assessment was here against a disputed factual background.
Ralph Gibson LJ said: "As I understand the reference to the sham nature of the obligation,' namely that of sharing the room in common with other persons nominated by the landlord, the House of Lords is there saying, first, that the agreement in that case constituted the grant of exclusive possession; secondly, that the written obligation to share the room was not effective to alter the true nature of the grant; and thirdly, that, on the facts of the case, it should have been clear to the Court of Appeal that the landlord cannot have intended the term as to sharing occupation to be a true statement of the nature of the possession intended to be enjoyed by the 'licensees.'"
Rules of the Supreme Court Order 113
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[ Bailii ]
 
Bass Holdings Ltd v Lewis [1986] EWCA Civ 2; (1986) 280 EG 771; [1986] 2 EGLR 40
29 Jul 1986
CA
Sir John Donaldson MR, Nourse, Glidewell LJJ
Landlord and Tenant
The appellant, Mr Lewis had been granted a tenancy by the appellant on its standard terms. Notice was given to terminate the tenancy. The tenant appealed against a ruling that he had not acquired a tenaancy for 90 years under the 1925 Act. Held: The appeal failed.
Nourse LJ analysed the section: "First, the word 'determinable' is capable of meaning 'liable to determine' and no more. It does not necessarily also mean 'determinable by notice' or by some other positive act.
Second, it seems to me to be very important to pay attention to the prepositions which are used in the two parts of the subsection. In describing the leases to which it is to apply, the subsection refers to leases determinable with life or lives, or on the marriage of the lessee. That suggests that it is referring to leases which will determine automatically, in the one case on death and in the other on marriage. By contrast, when you get to the provision dealing with the new lease, you find that it is to be determinable by notice after the death or marriage as the case may be of the lessee. That is a distinction which I do not think can be ignored and it is further emphasised by the terms of proviso (c).
Third, the contrast between the use of the word 'determinable' simpliciter in the first part of the subsection and the reference to determinability after the death or marriage by notice in the second conclusively confirms that in the first part 'determinable' does not mean determinable by notice."
Law of Property Act 1925 149(6)
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[ Bailii ]
 
Norwich Union Life Insurance v British Railways Board [1987] 2 EGLR 137
1987

Hoffmann J
Landlord and Tenant
The court made reference to the "torrential style of drafting which has been traditional for many years" among draftsmen of covenants in leases. "The use of ordinary language to convey meaning often involves subtle discriminations which for most people are intuitive rather than capable of lucid explanation. An explanation of why ordinary English words in a particular context convey a given meaning is frequently more likely to confuse than to enlighten. Perhaps this is what judges mean when they say that questions of construction are often matters of impression."
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 Dresden Estates Ltd v Collinson; CA 1987 - [1987] 1 EGLR 45
 
Nozari-Zadeh v Pearl Assurance plc [1987] 2 EGLR 91
1987


Landlord and Tenant
The tenant had taken the lease in his own, name and later incorporated the business. He sought a new tenancy. Held: The company occupied the premises, not the claimant, and he was not entitled to a new lease.
Landlord and Tenant Act 1954


 
 Paterson v Aggio; CA 1987 - [1987] 2 EGLR 127
 
Goldsworthy v Brickell [1987] Ch 378; [1987] 2 WLR 133
1987
CA
Nourse LJ, Parker LJ
Equity, Undue Influence, Landlord and Tenant
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some considerable involvement with the farm. The plaintiff gave a general power to the son who now sought to set aside the transactions as having been obtained by undue influence. Held: A presumption of undue influence could be raised where the gift was so large or improvident that it could not be accounted for from mere friendship. Equity has refused to put limits on what is to be held to be a fiduciary relationship and to which the presumption of undue influence can apply. There has to exist a degree of trust and confidence such that: (Nourse LJ) "The party in whom it is reposed, either because he is or has become an adviser of the other or because he has become entrusted with the management of his affairs or every day needs or for some other reason, is in a position to influence him into effecting the transaction of which complaint is later made." and acquiescence in its proper sense involves “a standing by so as to induce the other party to believe that the wrong is assented to.”
Parker LJ said: “Upon whatever precise basis it is sought to uphold a transaction which was originally obtained by undue influence it is an essential ingredient that it would be inequitable to allow the influenced party to set aside the transaction.”
Nourse LJ also said: "Undue influence is of two kinds: (1) express or, as it is nowadays more usually known, actual undue influence, and (2) that which in certain circumstances is presumed from a confidential relationship; by which in this context is meant a relationship wherein one party has ceded such a degree of trust and confidence as to require the other, on grounds of public policy, to show that it has not been betrayed or abused. In cases where there is no confidential relationship actual undue influence must be proved. In cases where there is such a relationship it is sometimes alleged, but need not be proved and may never have occurred. Occasionally, even where there is no direct evidence of influence, it is found that there is both a confidential relationship and actual undue influence . . " and " . . Because they have occasioned little or no debate on this appeal, three further general observations may be briefly made. First, it is not every relationship of trust and confidence to which the presumption applies. No generalisation is possible beyond the definition already attempted. Secondly, with relationships to which it does apply the presumption is not perfected and remains inoperative until the party who has ceded the trust and confidence makes a gift so large, or enters into a transaction so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act. Although influence might have been presumed beforehand, it is only then that it is presumed to have been undue. Thirdly, in a case where the presumption has come into operation the gift or transaction will be set aside, unless it is proved to have been the spontaneous act of the donor or grantor acting in circumstances which enable him to exercise an independent will and which justify the court in holding that the gift or transaction was the result of a free exercise of his will."
Agricultural Holdings Act 1948 8
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Hua Chaio Commercial Bank v Chiaphua Industries [1987] AC 99; [1987] 1 All ER 1110; [1987] 2 WLR 179; [1987] ANZ Conv R 158
1987
PC

Landlord and Tenant
The landlord had granted a lease, under which the tenant paid a security deposit on the signing of the lease. The deposit was returnable on the expiration of the term provided that there was no breach of any of it terms and conditions on the part of the tenant or else the deposit would be absolutely forfeited. The landlord subsequently mortgaged its interest in the reversion by assignment to the bank without reference to the security deposit. The landlord defaulted and the bank entered into possession. The landlord then became insolvent. At the end of the term, the tenant demanded the bank to return the deposit. Held: The critical question was: "there remains in any event the critical question of whether, even assuming that, as a matter of construction of the clause, there can be deduced the intention by the original parties that the benefit and burden of the landlord's obligation for payment should pass without express assignment or novation to and against successors in title, that is a result which, having regard to the nature and purpose of the obligation, is capable of achievement. And as regards this question, their Lordships have found themselves unable to agree with the decision reached by the Court of Appeal of Hong Kong."
After reciting the tenant's argument, explained the Board said: "That the original tenant's obligation to make the deposit is "bound up" with his obligation to perform the tenant's covenants in the lease is undeniable, but the former is, of course, a once-for-all contractual obligation between the original parties as regards which no question of transfer with the term or with the reversion can arise. The sum deposited is to be paid on or before the execution of the lease. What this appeal is concerned with, however, is only the landlord's obligation to repay once the lease has expired without breach of covenant, there being neither any obligation on the original landlord to pay over the amount of the deposit to an assignee of the reversion nor any obligation on the original tenant to assign to an assignee of the term his contractual right to receive back the amount of the deposit when and if the condition for its repayment is fulfilled. It is bound up with the tenant's covenant only, as it were, at one remove, as being an obligation correlative to a contractual obligation which is itself connected with the performance of covenants touching and concerning the land."
The Board concluded: "There is not, on any conceivable construction of the clause, anything which either divests the original tenant of his contractual right to receive back after assignment the deposit which he had paid or which entitles an assignee from him to claim the benefit of the sum to the exclusion of his assignor; and, plainly, the money cannot be repaid more than once. Equally, there is not on any conceivable construction anything in the clause which entitles the assignee of the reversion to take over from the assignor the benefit of the sum deposited or which obliges the assignee, in enforcing the covenants against the tenant for the time being, to give credit for money which he himself has never received and to which he has no claim. Whilst it is true that the deposit is paid to the original payee because it is security for the performance of contractual obligations assumed throughout the term by the payer and because the payee is the party with whom the contract is entered into, it is, in their Lordships' view, more realistic to regard obligation as one entered into with the landlord qua payee rather than qua landlord. By demanding and receiving this security, he assumes the obligation of any mortgagee to repay on the stipulated condition and that obligation remains, as between himself and the original payer, throughout the period of the lease, even though neither party may, when the condition is fulfilled, have any further interest in the land demised. The nature of the obligation is simply that of an obligation to repay money which has been received and it is neither necessary nor logical, simply because the conditions of repayment relate to the performance of covenants in a lease, that the transfer of the reversion should create in the transferee an additional and co-extensive obligation to pay money which he has never received and in which he never had any interest or that the assignment of the term should vest in the assignee the right to receive a sum which he has never paid."
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 Sharpe v Duke Street Securities; 1987 - (1987) 55 P&CR 331
 
Panther Shop Investments v Keith Pople (1987) 282 EG 594
1987

John Mowbray QC
Landlord and Tenant
Under an earlier lease, the tenant had erected an extension and storage building. There had been no obligation to do so. In the subsequent lease, the rent came to be reviewed. Held: The improvements carried out under the previous lease were not improvements under the current lease, and could not be disregarded.
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Capital and Counties Freehold Equity Trust Ltd v BL plc [1987] 2 EGLR 49
1987
ChD
Paul Baker QC HHJ
Landlord and Tenant
The court construed the word "incurred" in a lease to be synonymous with "expended" or "become payable".
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Braddon Towers Ltd v International Stores Ltd [1987] 1 EGLR 209
1987

Slade J
Landlord and Tenant
Slade J considered the availability of an order for specific performance of a positive covenant: "Whether or not this may be properly described as a rule of law, I do not doubt that for many years practitioners have advised their clients that it is the settled and invariable practice of this court never to grant mandatory injunctions requiring persons to carry on business."
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Lubren v Lambeth London Borough Council (1987) 20 HLR 165
1987
CA

Landlord and Tenant
The court gave broad approval of a median figure of £1,000 damages a year to be awarded to a tenant for a five-year deterioration of premises from habitable to 'appalling'.
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Stroud v Weir Associates [1987] 1 EGLR 190; (1987) 19 HLR 151
1987
CA
Glidewell LJ, O'Connor LJ, Lloyd LJ
Landlord and Tenant, Contract
The court was asked to set pitch fees on a registered mobile home site. The site owner had sought to rely upon the fact of the order which cut from 15 per cent to 10 per cent the maximum commission chargeable by a site owner on an occupier's assignment of his mobile home that reduction in his commission entitlement as a relevant factor on the pitch fee review. The court asked whether evidence of the pitch fees or rents charged at other sites was a relevant factor. Held: Evidence of pitch fees at other caravan sites did not fall within the review clause, because the phrase "applicable to the operation of the park" qualified the term "any other relevant factor". Thus the court favoured a fairly narrow interpretation of sub-paragraph (iii) in that case. The phrase "applicable to the operation of the park" applied equally to "any other relevant factors" as to "the effect of legislation".
Glidewell LJ said, however, that "Grammatically there is no break, no comma or any other indication to show that the phrase 'applicable to the operation of the park' is intended only to include the effect of legislation. The words make sense read as a whole, and for myself I would so interpret them." and "In my view the Court cannot merely decide whether relevant factors have been taken into account but it can also decide the figures themselves: in other words, in this respect the Court is acting as an arbitrator would do" The judge had been right to hold that the loss of commission was a relevant factor applicable to the operation of the site. Evidence as to the rent charged on a new letting of a pitch on the same site "could be considered to be relevant".
Mobile Homes Act 1983 - Mobile Homes (Commissions) Order 1983
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 Dennis and Robinson Ltd v Kiossos Establishment; CA 1987 - [1987] 1 EGLR 132

 
 Equity and Law Life Assurance Society plc v Bodfield Ltd; CA 1987 - [1987] 1 EGLR 124
 
Stent v Monmouth District Council (1987) 54 P & CR 193
1987

Sir John Arnold, President, and Stocker LJ
Landlord and Tenant
The court considered whether under a repairing covenant a wooden door should be replaced with a self-sealing aluminium door. Held: The replacement came within a repairing covenant as a sensible way to deal with a persisting problem.
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Bass Holdings Ltd v Morton Music Ltd [1988] Ch 493
1987
CA
Kerr, Nicholls and Bingham LJJ
Landlord and Tenant
The tenant had the option to take a further lease on giving written notice of their desire "if it shall have . . performed and observed the several stipulations on its part to be performed and observed up to the date of [the notice]". The question was whether the clause required the reading that past or spent breaches of covenant would preclude the exercise of the option. Bass Holdings Ltd claimed against Morton Music Ltd for breaches of covenant. Held: Morton Music's appeal succeeded. The court reviewed the authorities.
Kerr LJ: "(1) The first question is whether, on the true construction of the proviso in question, the absence of any material breaches of covenant by the defendants is a condition precedent to the exercise of the option, as well as the giving of the requisite notice purporting to exercise the option. Generally, and admittedly in the present case, the proviso contains a double condition precedent, viz. (i) the absence of any material breaches of covenants and (ii) compliance with the requirement as to notice.
(2) That, however, leaves the crucial question whether the condition precedent (i), that there must be no material breaches of covenant by the defendants, applies to spent as well as to subsisting breaches. This question is covered by dicta in numerous cases, going back in particular to Grey v. Friar (1854) 4 H.L.Cas. 565, and by the decision of Clauson J. in Simons v. Associated Furnishers Ltd. [1931] 1 Ch. 379.
The upshot of these authorities is that spent breaches will not destroy the tenant's right to exercise the option, but subsisting breaches will. As shown by the passages to which I refer below, the reasoning is in effect as follows. First, it must be accepted that absolute and precise compliance by the tenant with every single covenant throughout the period of the lease prior to the operative date is virtually impossible of attainment. If this were required as a condition precedent, then the option would in practice be worthless or merely at the mercy of the landlord. Therefore the parties cannot have intended that the absence of spent breaches should be a condition precedent. Secondly, however, it is natural and sensible that the landlord should require the tenant not to be in breach of any covenant on the operative date and that all outstanding claims for breach of covenant should have been previously satisfied, so that the lease is then effectively clear. The proviso is therefore to be construed as intended to apply to subsisting breaches, with the result that the relevant condition precedent is the absence of any subsisting breach."
Nicholls LJ: "With such a clause the commercial purpose achieved by a condition construed as meaning "no subsisting breach" is readily apparent: before the lease can be ended prematurely all the rent due must have been paid, the property must have been put into a proper state of repair, and the other covenants must have been observed and performed in the sense that all liability in respect of any previous breaches must be at an end. What commercial purpose, in such a case, would be served by the "never any breach" construction of the condition precedent is not so readily apparent." and "The two alternative constructions have only to be stated for it to be apparent that the 'never any breach' construction would mean that in practice the condition would be impossible of fulfilment in almost all cases of leases of buildings containing a full range of repairing and other covenants by a tenant. However diligent or even punctilious a tenant may be in carrying out his obligations under his lease, in such cases there will in practice inevitably be occasions when there will be outstanding some dilapidations which would, strictly, constitute breaches of the repairing or redecorating covenants. Thus the practical consequence of the 'never any breach' construction in such cases would be that the break or renewal option would seldom, if ever, be exercisable by a tenant." and "Even in the case of other leases, where the tenant's covenants might be less far reaching, this construction would lead to much uncertainty for tenants and their assigns. Break options and renewal options may be valuable but, on this construction, after a few years and particularly if there have been assignments or sub-lettings, the current tenant or a would-be assignee of a lease would be unable in many cases to discover whether or not a break option or a renewal option had already lapsed by reason of a breach of covenant. Indeed, short of a positive answer from a co-operative landlord, it is difficult to see how in this type of situation a tenant or would-be assignee could ever be sure that there had not been a breach, maybe trifling, of one covenant or another in the history of the lease".
Bingham LJ: "Where a tenant wished to take advantage of a break clause, the landlord was not greatly concerned with the history of the tenant's performance before the break. The worse the tenant's performance, the readier the landlord might reasonably be to get rid of him. But whatever the tenant's defaults in the past, the landlord would be very much concerned that at the time of the break the rent should be fully paid (because he could no longer distrain) and the covenants fully observed (so that the property could be re-let or sold without delay or additional expenditure)."
1 Cites

1 Citers


 
Chrisdell Ltd v Johnson and Tickner (1987) 54 P & CR 257; (1987) 19 HLR 406
1987
CA

Landlord and Tenant
The tenant had a three year term, subject to a covenant against assignment, having been refused permission to assign, he took on the second defendant as a caretaker to look live in and look after the flat while he was away. He told the landlords that this was not happening and that there had been no assignment, and he continued to pay the rent. The tenancy became a statutory tenancy. The plaintiff purchased the freehold and sought possession. The court found the landlord had no knowledge of the breach, and was not prevented from recovering possion by any waiver. Held: The tenant's appeal failed. The landlord's suspicion was not enough to displace the clear representation from the defendant. The landlord had not had notice of the breach.


 
 Dixon v Allgood; HL 1987 - [1987] 1 WLR 1689
 
Appleton v Aspin and Plane [1988] 1 WLR 410; (1987) 20 HLR 182
1987
CA

Landlord and Tenant
The tenant was a secure tenant who surrendered his tenancy anticipating buying the freehold. The surrender went through but not the purchase. The tenant stayed in occupation. Held: A statutory tenancy had come into being and proceedings were required to recover possession. A person who had contracted to buy the freehold reversion of a property with vacant possession came within the definition of "landlord" in section 152 of the Rent Act 1977 as he was a person "deriving title from the original landlord following exchange of contracts".
Rent Act 1977 152

 
FW Woolworth plc v Charlwood Alliance Properties Ltd [1987] 1 EGLR 53
1987
ChD
Judge Finlay QC
Landlord and Tenant
The tenant complained that the landlord had unreasonably withheld its consent to a proposed assignment. Held: The landlords were not acting unreasonably in refusing consent on grounds which were unexceptionable. Judge Finlay QC said: "The landlords here are, in my judgment, entitled to consider the likely effect upon their ability to let other parts of the property and, indeed, to obtain the appropriate rents for their other property in the centre. At all material times there was a high likelihood, now shown to be a certainty, that the assignee would not keep the store open and the landlords are entitled to consider the effect which that would have upon their ability not only to let the other property in the centre but to obtain satisfactory rents for them."
1 Citers


 
City and Metropolitan Properties Ltd v Greycroft Ltd [1987] EWHC Ch 1; 283 EG 199; [1987] 2 EGLR 47; [1987] 1 WLR 1085; [1987] 3 All ER 839; [1987] 54 P&CR 266
23 Jan 1987
ChD

Landlord and Tenant
The tenant sought consequential damages from the landlord for the entire period during which the landlord had been in breach of his duty of repair under the lease when the tenancy in the lease had been in a previous owner.
[ Bailii ]
 
Ashburn Anstalt v Arnold (1) [1987] EGLR 71; Times, 09 November 1987; [1987] 284 EG 1375
27 Oct 1987
CA
Fox, Neill and Bingham LJJ
Landlord and Tenant, Registered Land
Houses in Kensington were let together for a term of just over 50 years. There was just one title for the headlease. Informal subleases of parts had been granted granted at no rent. After several dealings with the titles, and the plaintiffs came to be the freeholders and landlords of the informal leases. When they sought possession, the defendants claimed that the leases were protected having overriding interests as tenants in possession. The plaintiffs said that there could be no leases without rent being paid. Held: A lease did not require payment of rent to be valid, and the defendants had overriding interests.
Fox LJ said "the overriding interest will relate to the land occupied but to nothing else".
1 Citers


 
Tennant Radiant Heat Ltd v Warrington Development Corporation [1988] 1 EGLR 41; [1988] 11 EG 71
1988

Dillon LJ, Croom-Johnson LJ, Caulfield J
Landlord and Tenant, Nuisance, Damages
A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that since the roof was not comprised in any of the leases, there was an implied duty on it to repair the roof. Held: There was no necessary implication of business efficacy to allow the implication of the term. The tenant was himself in breach for having failed to clear the outlet above his own property. The landlord was liable in nuisance for failing to clear the other rainwater outlets. The 1945 Act did not apply since the tenant's failure was not tortious. Nevertheless, the tenant was liable as to 10%. "More importantly, however, for present purposes, the archaic and draconian rule of the common law which the 1945 Act was passed to override also has no application to the present case, since that rule had no relevance to a claim in, or in my judgment to a breach of, contract which was not also itself tortious. . . The problem which this court faces, on claim and counterclaim alike, is in my judgment a problem of causation of damage. On the claim, the question is how far the damage to its goods which the lessee has suffered was caused by the corporation's negligence notwithstanding the lessee's own breach of covenant. On the counterclaim, the question is how far the damage to the corporation's building which the corporation has suffered was caused by the lessee's breach of covenant, notwithstanding the corporation's own negligence. The effect is that on each question, apportionment is permissible. This is the same result as the 1945 Act would produce, but it is not reached through the Act, because the obstacle which the 1945 Act was passed to override is not there on either claim or counterclaim in the present case." Croome-Johnson: "If the 1945 Act has no application, what is the position on the two claims? The evidence clearly indicates that the damage to the plaintiff's premises was attributable to two concurrent causes, both operating contemporaneously. One was the defendant's negligence and the other was the plaintiff's breach of covenant . . . If the collapse had been caused by the combined negligence of the defendant and some third party, the plaintiff would have been entitled to recover all its damages from the defendant, leaving it to get contribution from its fellow tortfeasor . . . But that does not apply when the other cause comes from the plaintiff himself . . . A tenant who is in breach of his repairing covenant must pay for all the costs of repair or of the damage to the reversion. But the position is different if the covenantee is the selfsame landlord who has caused nine-tenths of the damage to the roof. . . . It is not possible, therefore, to allow both the claim and counterclaim in full and to set off the two awards of damages. Where one is dealing with two contemporaneous causes, each springing from the breach of a legal duty but operating in unequal proportions, the solution should be to assess the recoverable damages for both on the basis of causation."
Law Reform (Contributory Negligence) Act 1945
1 Cites

1 Citers


 
Basingstoke and Deane Borough Council v Host Group Limited [1988] CLY 2069; [1988] 1 WLR 348
1988
CA
Nicholls LJ
Landlord and Tenant
A lease of various buildings including a public house required the rent review to be carried out on the premise that the demise consisted of a bare site. The issue was whether the terms of the hypothetical letting and the valuation formula were to be the same as in the lease itself or whether they should be those which the valuer regarded as reasonable for a lease of a bare site. Held: Unless the rent review clause required some other test to be applied, the presumption was that the notional letting was to be on the same terms as the existing lease: ". . . rent review clauses may, and often do, require a valuer to make his valuation on a basis which departs in one or more respects from the subsisting terms of the actual existing lease. But if and in so far as a rent review clause does not so require, either expressly or by necessary implication, it seems to us that in general, and subject to a special context indicating otherwise in a particular case, the parties are to be taken as having intended that the notional letting postulated by their rent review clause is to be a letting on the same terms (other than as to quantum of rent) as those still subsisting between the parties in the actual existing lease. The parties are to be taken as having so intended, because that would accord with, and give effect to, the general intention underlying the incorporation by them of a rent review clause into their lease."
1 Cites

1 Citers


 
Ipswich Town Football Club v Ipswich Borough Council [1988] CLY 2029
1988


Landlord and Tenant

1 Citers


 
McNerny v London Borough of Lambeth (1988) 21 HLR 188; [1988] EWCA Civ 2; [1989] 1 EGLR 81; [1989] 19 EG 77
1988
CA
Dillon, Taylor LJJ, Sir John Megaw
Housing, Landlord and Tenant
The scale of the dampness which had to be endured by a tenant led to constant colds and minor ailments being suffered by the plaintiff and her children who had to live in those unhealthy conditions. Held: The legislature had "conspicuously refrained" from updating the statutory rent limit and it was therefore not for the courts to create liabilities which Parliament had not thought fit to enact. In a field such as housing law, which is very much a matter for the allocation of resources in accordance with democratically determined priorities, the development of the common law should not get out of step with legislative policy. There was no liability under the Act for a design defect in premises causing condensation, as this did was not disrepair and therefore was not covered by the landlords covenant to repair/maintain under section 11.
Landlord and Tenant Act 1985 11
1 Cites

1 Citers

[ Bailii ]
 
Tall-Bennett and Co Pty Ltd v Sadot Holdings Pty Ltd (1988) 4 BPR 9522
1988

Young J
Commonwealth, Landlord and Tenant
(Supreme Court of New South Wales) The tenant abandoned the premises. When the landlord sought recovery of the subsequent rents, the tenant argued that he had a duty to mitigate his losses. Held. The tenant failed. If the tenant wants to go out of possession and be relieved of the economic burden of the rent he can try to underlet or find an assignee. It was not unreasonable in a landlord to insist on maintaining his position as a result of the grant of the lease, and being reluctant to assume the trouble of finding a new tenant and then suing the original tenant for damages, and leaving it to the tenant to find an assignee or sub-tenant.
1 Citers


 
Moss v Mobil Oil Co Ltd [1988] 1 EGLR 71
1988


Landlord and Tenant
The section required a notice to relate to all the property comprised in the lease. One part of the freehold had been sold off. Held: In this case the lease had in effect let two properties, and could be construed as two separate lease, and the landlord was able to serve a s25 notice in respect of one only.
Landlord and Tenant Act 1954 25

 
Overcom Properties v Stockleigh Hall Residents Management Ltd [1988] 58 P&CR 1
1988
ChD
Vinelott J
Landlord and Tenant
The lease granted the defendants rights of access over the grounds and forecourts of a block of flats, but reserving to the lessor the right to develop "notwithstanding that the access of light or air or any other easement appertaining to the flat may be obstructed or interfered with". Held: Vinelott J said: "Looking at the lease as a whole and to the situation of the flat and the entrances, the words 'obstructed' or 'interfered with' should be read as 'permitting acts which would otherwise allow for an unjustified obstruction or interference with an easement and which would otherwise be an act or nuisance but not acts which would, for practical purposes, destroy it'."
1 Citers


 
Hadjiloucas v Crean [1988] 1 WLR 1006
1988
CA
Purchas LJ
Landlord and Tenant
Two ladies applied to take two-roomed flat with kitchen and bathroom. Each signed an agreement to pay £260 per month to share the use of the flat with one other person. They moved into the flat and enjoyed exclusive occupation. In terms, if the agreement of one lady was terminated, the owner could require the other to share the flat with a stranger. The county court judge decided that the agreements only created licences. Held: A retrial was ordered to investigate the facts further. However, the two ladies applied for and enjoyed exclusive occupation unless and until one of their agreements was terminated, and they had acquired a tenancy protected by the Rent Acts. The reservation to the owner of the right at common law to require one of the ladies to share the flat with a stranger was a pretence.
1 Citers



 
 Hilton v Plustitle Ltd; CA 1988 - [1988] 3 All ER 1051; [1989] 1 WLR 149

 
 Webb and Barrett v London Borough of Barnet; CA 1988 - (1988) 21 HLR 228

 
 Essex Plan Ltd v Broadminster; ChD 1988 - (1988) 56 P&CR 353
 
St Marylebone Property Ltd v Tesco Stores Ltd [1988] 2 EGLR 40
1988

Hoffmann J
Landlord and Tenant
Complaints were made by tenants in a block as to the behaviour of other tenants. A covenant in a lease granted in the early 1950s, restricted the user of premises to that of "grocers provisions wine spirit and beer merchants". The premises had been used as a supermarket, and then underlet to a lessee (Mr Patel) who extended the business to include sale of newspapers and magazines, and later a video hire business. Held: Hoffmann J:- "Construing the covenant requires one to ask whether Mr Patel can be said to be carrying on only the trade of grocer and provision merchant or some other composite trade, or differing trades in addition. This must be a matter of degree. For example, a grocer's shop which sells a few electrical plugs and batteries might well be said to be a shop which is a grocer but happens conveniently to sell some electrical goods rather than a shop which carries on both grocery and electrical trades. On the other hand, if non-grocery products are sold in sufficient quantity they will constitute the carrying on of a separate trade, and even if a wide variety of non-grocery items are sold in quantities each of which would not in themselves amount to a separate trade, the cumulative effect may be to make it inappropriate to describe the premises as a grocery and provision merchant rather than a general store or some other composite description."
On Mr Patel's evidence, one out of four units in the shop was used for newspapers and other non-grocery goods, and they accounted for about half the turnover of the shop. "On that evidence I do not think that it is possible to say that the premises are being used only for the purposes of a grocery and provision merchant. One might say that, in addition, Mr Patel was, at the very least, also carrying on the business of a newsagent and a hirer of video films, or one might say that the business was that of a general store. I do not think it matters which, because in either case it goes further than the covenant allows."
1 Citers



 
 Otter v Norman; HL 1988 - [1988] 2 WLR 250; [1989] AC 129; [1988] 1 All ER 531
 
Pfeiffer GmbH v Arbuthnot Factors Limited [1988] 1WLR 150
1988


Landlord and Tenant
Section 136 by its terms preserves the equitable rule that the debtor can rely on any rights of set-off which arose before he had notice of assignment .
Law of Property Act 1925 136
1 Citers


 
Gisborne v Burton [1988] 3 All ER 760; [1989] QB 390; [1988] 3 WLR 921
1988
CA
Ralph Gibson LJ
Landlord and Tenant
The land-owner held an agricultural holding. He wanted to let it but, in doing so, to deprive the tenant of the benefit of the statutory regime giving security of tenure. So he let the property to his wife, and his wife granted a sub-tenancy to the defendant. The freeholder subsequently died and his personal representatives wanted to recover possession. They served notice to quit on the wife determining her tenancy. She refrained from serving any counternotice, nor did he serve any notice to quit on the sub-tenant. The personal representatives, after the expiry of the notice to quit, claimed possession from the sub-tenant. Held: The tenancy to the wife was a sham, a pretence without any reality. They held that the sub-tenant was in reality a tenant holding directly from the landlord to whom he had, for years, been paying his rent. No notice to quit had been served on the sub-tenant, so his agricultural tenancy continued. The notice to quit served on the wife was so much waste of paper.
(Ralph Gibson LJ, dissenting) The tenancy granted to the wife was not a sham, but was a reality, and should be treated on that footing.
Agricultural Holdings Act 1986
1 Citers


 
Regina v London Borough Croydon ex parte Toff [1988] 20 HLR 576
1988


Landlord and Tenant
The tenant having left the property, the landlord relet them. Held: The act of the landlord meant it would be inequitable to hold the lease to continue.
1 Citers


 
Ashburn Anstalt v Arnold (2) [1989] Ch 1; [1988] 2 All ER 147
25 Feb 1988
CA
Fox, Neill and Bingham LJJ
Landlord and Tenant, Registered Land
Various leases of properties had been granted. Legal and General occupied the property under an arrangement under which they paid no rent. The landlord sought possession, saying that the agreements were licences not tenancies because of the absence of rent. Held: The payment of rent is not an essential qualification for a tenancy agreement. The tenants occupied the land with an overriding interest. Their right to occupy premises until the owner gave one quarter's notice certifying he needed the premises for redevelopment created a tenancy binding on third parties. The term was not uncertain so as to defeat the lease.
Registered Land Act 1925 70(1)(g)
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[ Bailii ]
 
Antoniades v Villiers and Another [1988] 3 WLR 139; (1988) 20 HLR 439; [1988] EWCA Civ 3; [1988] 2 All ER 309; (1988) 56 P & CR 334; [1988] EGCS 33
17 Mar 1988
CA
Bingham LJ
Landlord and Tenant
The court considered whether a license agreement was a sham and that a tenancy had been created. Bingham LJ said: 'Where a written agreement is not held to be a sham, the task of the court, as with any other agreement, is to construe it and give fair effect to its terms in the context of all relevant surrounding circumstances'
1 Citers

[ Bailii ]
 
Galinski v McHugh [1989] 1 EGLR 109; (1988) 57 P&CR 359; Independent, 10 October 1988
5 Oct 1988

Slade LJ
Landlord and Tenant
A landlord’s notice under section 4 of the Landlord and Tenant Act 1954 had been served on the tenant’s solicitors, who had confirmed that they had authority to accept service. Later the tenant challenged the validity of the service. Held: Service of a notice under the Act on the tenant's solicitors was valid and effective. They were its duly authorised agents: "In the circumstances we can see no good reason why section 23(1) or anything else should prevent the ordinary rules as to service of notice as between landlord and tenant, and the ordinary rules of agency, from operating in the present case. As we have already said, it is common ground that, under the general law of landlord and tenant, it is possible for good service of a landlord’s notice to be effected by serving it on the duly authorised agent of the tenant (and vice versa)."
Landlord and Tenant Act 1954 4
1 Citers


 
A G Securities v Vaughan; Antoniades v Villiers and Bridger [1988] 1 EGLR 36; [1990] 1 AC 417; [1988] 3 WLR 1205; [1988] UKHL 8; [1988] 3 All ER 1058
10 Nov 1988
HL
Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle
Housing, Landlord and Tenant, Contract
In Antoniades, the two tenants occupied an attic, living together. Each had at the same time signed identical agreements purporting to create licences. The landlord had reserved to himself the right to occupy the property and to allow others to occupy it so as to create no more than a licence. Held: Behaviour by the parties after a tenancy areement was not relevant in construing the tenancy agreement, but can be used to see whether the document properly reflected what the parties intended. Such surrounding circumstances include 'any relationship between the prospective occupiers, the course of negotiations and the nature and extent of the accommodation and the intended and actual mode of occupation.' The documents were interdependent, and in fact the tenants had enjoyed exclusive occupation. The clause allowing additional occupiers was a sham. The two agreements had to be read together. The parties could not contract out of the Rent Acts, and clause 16 did not reflect the true position and that accordingly clause 16 should be struck out.
In A G Securities, four tenants of a property had signed separate documents at different times. They now claimed to have one joint tenancy rather than licence agreements as claimed by the landlord. Held: The court will look to the substance and reality of the transaction entered into by the parties, not just the apparent form. Nevertheless, in this case the rigts and duties having been created originally as several obligations, could not become joint.
Lord Templeman said: "Where a landlord creates a tenancy of a flat and reserves the right to go into exclusive occupation at any time of the whole or part of the flat with or without notice, that reservation is inconsistent with the provisions of the Rent Acts and cannot be enforced without an order of the court under section 98. Where a landlord creates a tenancy of a flat and reserves the right to go into occupation of the whole or part of the flat with or without notice, jointly with the existing tenants, that reservation also is inconsistent with the provisions of the Acts. Were it otherwise every tenancy agreement would be labelled a licence and would contract out of the Rent Acts by reserving power to the landlord to share possession with the tenant at any time after the commencement of the term.
Clause 16 is a reservation to Mr Antoniades of the right to go into occupation or to nominate others to enjoy occupation of the whole of the flat jointly with Mr Villiers and Miss Bridger. Until that power is exercised Mr Villiers and Miss Bridger are jointly in exclusive occupation of the whole flat making periodical payments and they are therefore tenants. The Rent Acts prevents the exercise of a power which would destroy the tenancy of Mr Villiers and Miss Bridger and would deprive them of the exclusive occupation of the flat which they are now enjoying. Clause 16 is inconsistent with the provisions of the Rent Acts.
There is separate and alternative reason why clause 16 must be ignored. Clause 16 was not a genuine reservation to Mr Antoniades of the power to share the flat and a power to authorise other persons to share the flat. Mr Antoniades did not genuinely intend to exercise the powers save possibly to bring pressure to bear to obtain possession. Clause 16 was only intended to deprive Mr Villiers and Miss Bridger of the protection of the Rent Acts. Mr Villiers and Miss Bridger had no choice in the matter."
Lord Bridge said: "Here the artificiality was in the pretence that two contemporaneous and identical agreements entered into by a man and a woman who were going to live together in a one-bedroom flat and share a double bed created rights and obligations which were several rather than joint. As to the nature of those rights and obligations, the provisions of the joint agreement purporting to retain the right in the respondent to share the occupation of the flat with the young couple himself or to introduce an indefinite number of third parties to do so could be seen, in the relevant circumstances, to be repugnant to the true purpose of the agreement. No one could have supposed that those provisions were ever intended to be acted on. They were introduced into the agreement for no other purpose than as an attempt to disguise the true character of the agreement which it was hoped would deceive the court and prevent the appellants enjoying the protection of the Rent Acts. As your Lordships all agree, the attempt fails."
Rent Act 1977 1
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[ Bailii ]

 
 Pittalis v Grant; CA 1989 - [1989] QB 605

 
 Rhodes v Allied Dunbar Pension Services Ltd; CA 1989 - [1989] EG 70; [1989] 1 WLR 800
 
Orlando Investments v Grosvenor Estate Belgravia [1989] 43 EG 175
1989


Landlord and Tenant
The lease contained a tenant’s covenant to repair, and not to assign without the landlord’s consent, such consent not to be unreasonably withheld. T, himself an assignee, and therefore not liable on the covenant after assignment, sought consent from the landlord to assign to A who promised to complete the works of repair. The landlord refused consent. Held: The landlord had not acted unreasonably, and the appeal failed. Failures by the assignee to provide a schedule of works was not relevant since the only matters which could be taken into account were those applicable at the time the landlord made his decision. However the judge had been correct to say that the landlord was entitled to evidence of the assignee’s capacity to do the work, and that since the landlord would refuse consent to merge the property with A’s existing neighbouring property A would be likely just to sell on the lease.
1 Cites



 
 Shelley v United Artists Corporation Limited; CA 1989 - (1989) 60 P&CR 241; [1990] EGLR 103

 
 Harler v Calder; CA 1989 - (1989) 21 HLR 214; [1989] 1 EGLR 88

 
 Plough Investments Ltd v Manchester City Council; 1989 - [1989] EGLR 244
 
Ravenseft Properties Ltd v Park [1989] CLY 2186
1989


Landlord and Tenant

1 Citers



 
 Ropemaker Properties Limited v Noonhaven Limited; 1989 - [1989] 2 EGLR 50

 
 Sella House Ltd v Mears; 1989 - [1989] 1 EGLR 65
 
Venetian Glass Gallery Ltd v Next Properties Ltd. [1989] 2 EGLR 42
1989

Harman J
Landlord and Tenant, Contract
The court considered the significance of a reservation that a letter was sent “subject to licence”. After considering case law: “All three go to show that there is a distinction recognised by the law between the relationships, such as those between landlord and tenant, where there is an existing set of legal obligations between the parties and there is sought within those obligations a consent, and relations between strangers in law, as between prospective purchaser and prospective vendor, where there is no present tie and the parties are in their negotiations. I accept that there is such a distinction and I agree that one does not regard the need for a formal licence, probably under seal, as being the essential step without which there can be no effective licence, whereas of course in the case of a contract for the sale of land, apart from the difficulties created by section 40 of the Law of Property Act 1925, if there is no written note or memorandum of the contract, it is plainly the normal expectation of the law that until a normal contract has been signed, either by both parties or in two parts, and exchanged between the parties, there will be no legal relationship. Nonetheless, accepting that principle, it is still a question, in my view, of construction of the various letters and reading the correspondence as a whole.”
1 Citers


 
Bain and Co v Church Commissioners for England [1989] 1 WLR 24; Independent, 25 July 1988
1989
ChD
Harman J
Landlord and Tenant
Section 89 does not apply to an order for possession made by the High Court, and an application for an adjournment of a possession order must be refused. The word 'Court' must be construed to refer to the County Court only: "possession of a dwelling house under a rental purchase agreement is a matter which prima facie would be a county court matter and I suspect is not a matter the High Court has ever had to consider." and "I confess to finding the point puzzling. I started, as I observed, with a disposition to sense that the ordinary jurisdiction cannot have been intended to be so radically altered and cut down so as to restrict every court in this country, including the other part of the Supreme Court, the Court of Appeal, in its jurisdiction to limit orders for possession. I have no help from the text books which simply assume that the matter is a county court matter. I can, I think, take some help from the chapter heading to Part IV of the statute, and in the end, more by way of a bold leap in the dark than by way of reasoned proposition, I assert that 'a court' in section 89 means a county court."
Housing Act 1980 89
1 Citers



 
 Duncliffe v Caefelin Properties Ltd; ChD 1989 - [1989] 2 EGLR 38
 
Vickers and Vickers v Stichtenoth Investments Pty Ltd (1989) 52 SASR 90
1989

Bollen J
Landlord and Tenant, Commonwealth
(Supreme Court of South Australia) The court considered whether a landlord faced with a tenant who had vacated the property was under a duty to mitigate his losses: "There is no reason why in modern times mitigation of damage should not apply. It is an ordinary principle of contract law. With modern leases the law should recognise the importance of the contractual aspect of a lease. Why should not a landlord faced with abandonment take steps to try to reduce his loss? Why should a vendor of tomatoes faced with refusal to take delivery by his purchaser suffer if he does not sell if he can to another purchaser and yet a quiescent and immobile landlord not suffer if he fails to seek another tenant? Modern ideas say that there is no reason for this anomaly" and "mitigation as one ordinary principle of contract law applies to leases. That is to say, when a tenant abandons the leased premises the landlord is under duty to take reasonable steps to mitigate his loss by seeking another tenant. Of course circumstances may make it impossible or impractical for him for do that or find a tenant. But I think that the principle applies."
1 Citers



 
 Aslan v Murphy (No 1 and 2); Duke v Wynne; CA 27-Jun-1989 - [1989] EWCA Civ 2
 
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