The court was asked as to the interpretation of an elderly restrictive user covenant in a lease. The proposed use was by a sub-tenant as a sandwich bar serving ready prepared food, including cooked food, to take away and also to consume on the premises.
Held: (Solicitor’s note of the judgment) ‘I accept that victualler in its strict sense does not necessarily connote alcohol. It is also clear however that victualler can, in context, include that connotation. It is clear from the Oxford English dictionary and various 19th century statutes. I accept Mr Brock’s submissions that the use of victualler to mean any food and drink is wholly inapt in this case because of the specific prohibitions in the remainder of the covenant. I also accept there is some significance in the collocation of the words indicating the view of the draftsman and the parties’ intention to connote liquor. Construing the covenant as a whole, it seems to me that victualler does connote alcoholic liquor. That the sandwich bar does not sell. So the Master was right in his conclusion that there is no breach of covenant.’
As to the expression ‘coffee house keeper’: ‘It is clear from Fitz v Iles that coffee house is not limited to the 17th and 18th century meanings. The Court of Appeal in that case referred to ‘a new fashioned coffee house’ which amounted to food and drink consumption on the premises. I fail to see the distinction between a shop providing those on a self-service basis with waitress service insofar as it applies to a coffee house. There is no evidence in Fitz v lies that the Court of Appeal though that the point was significant. In my judgment, just as in 1892, so in the present time, provision of light refreshments for consumption on or off the premises is reasonably within the covenant. A sandwich bar is engaged in that business. Accordingly, it is a breach of covenant as a coffee house.’
Judges:
Rattee J
Citations:
Unreported, 26 March 1997
Jurisdiction:
England and Wales
Cited by:
Distinguished – Joint London Holdings Ltd v Mount Cook Ltd; Mount Cook Ltd v Joint London Holdings Ltd and Another ChD 2-Mar-2005
A lease created in 1950 included a covenant that the premises should not be used for the business of a ‘victualler, vintner, tavern keeper, vendor of malt liquor, restaurant or coffee house keeper’ without the landlord’s consent. Declarations were . .
Cited – Mount Cook Land Ltd v Joint London Holdings Ltd and Another CA 7-Oct-2005
The head lease contained a covenant against use of the premises as ‘victuallers’. The tenant sublet the premises for use as a sandwich shop. The tenant argued that the word ‘victuallers’ was to be construed only to prevent the use as ‘licensed . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 23 November 2022; Ref: scu.224869