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 victuallers’.
Held: The appeal succeeded. The judge’s task was to interpret the phrase at the appropriate date, namely 1950. The dictionaries made a clear distinction between victuallers who sold food generally, and licensed victuallers who in addition sold alcohol. Use as a sandwich shop was prohibited by the covenant.
Chadwick, Jonathan Parker LJJ, Etherton J
[20051 EWCA Civ 1171, Times 11-Oct-2005
Bailii
England and Wales
Citing:
Appeal from – 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 – Fitz v Iles CA 8-Nov-1892
The plaintiff, George Fitz, was the tenant under a lease in which he covenanted to carry on the business of a coffee house keeper. The lessor, Daniel Iles, covenanted not during the term to let any shop in the same road, over which he had any . .
Cited – Rex v Hodgkinson 1829
The term ‘victuals’ means food or sustenance including drink, and ‘victualler’ means anyone who sells victuals. . .
Cited – Regina v Surrey Justices 1888
The term ‘victuals’ means food or other sustenence including drinks. . .
Cited – Mortimer Investments Ltd v Mount Eden Land Ltd 26-Mar-1997
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 . .
Cited – Texaco Antilles Ltd v Kernochan HL 1972
The court considered the doctrine of unity of seisin of land as it affected restrictive covenants: ‘if the restrictions in question exist simply for the benefit of two adjoining premises [and not as part of a building scheme] and both those . .
Cited – St Marylebone Property Ltd v Tesco Stores Ltd 1988
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 . .
Cited – Mander v Falcke 1891
A restrictive covenant is enforceable against an occupier of the land. It could be a breach to use an access for land beyond that originally envisaged. . .
Cited – Stuart v Diplock CA 1899
The landlords of a property had covenanted not to permit or suffer to be permitted on thir neighbouring property the business of ladies’ outfitting. That property was later let to the defendants, who were hosiers, selling four classes of clothes . .
Cited – Post Investments Pty Ltd v Wilson 1-Feb-1990
(New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has . .
Cited – A Lewis and Co (Westminster) Ltd v Bell 1940
Simons J said: ‘In my view, what is done at these premises is the carrying on of the business of a tea-shop, and that involves, among other things, the sale of cigarettes. It is common-indeed, I was told that it was almost universal – that in tea – . .
Cited – Labone v Litherland UDC 1956
The court distinguished between the carrying on of a trade or business and the sale of particular items within that trade or business even though those items might themselves be properly sold by another trade or business. . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 28 November 2021; Ref: scu.230991