The tenant had broken a negative covenant against making alterations, namely not to change the exterior sign and not to alter the premises without consent. The landlord sought to forfeit the lease.
Held: The breach of the covenant was remediable if the harm caused can be rectified. The breach was a continuing one. Possession was denied.
Staughton LJ said: ‘In my judgment . . the question is: whether the remedy referred to is the process of restoring the situation to what it would have been if the covenant had never been broken, or whether it is sufficient that the mischief resulting from a breach of the covenant can be removed. When something has been done without consent, it is not possible to restore the matter wholly to the situation which it was in before the breach. The moving finger writes and cannot be recalled. That is not to my mind what is meant by a remedy, it is a remedy if the mischief caused by the breach can be removed. In the case of a covenant not to make alterations without consent or not to display signs without consent, if there is a breach of that, the mischief can be removed by removing the signs or restoring the property to the state it was in before the alterations.’
Aldous LJ spoke of negative and positive covenants, saying: ‘There is in my view nothing in the statute, nor in logic, which requires different considerations between a positive and negative covenant, although it may be right to differentiate between particular covenants. The test is one of effect.’
Judges:
Aldous LJ, Staughton LJ, Sir John May
Citations:
Times 06-May-1996, (1997) 73 P and CR 150, [1996] EWCA Civ 1302, [1996] EWCA Civ 1295, [1996] 2 EGLR 65
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Expert Clothing Service and Sales Ltd v Hillgate House Ltd and Another CA 2-Apr-1985
The defendant tenant appealed from refusal of relief from forfeiture. At the trial it was conceded that there had been breaches of covenant by the defendant company consisting of the failure to reconstruct the premises by a stated date, and to give . .
Cited by:
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Cited – Telchadder v Wickland Holdings Ltd SC 5-Nov-2014
Old breaches did not support possession order
The mobile home tenant was said to have paraded on the caravan park in combat style clothing, and disguising his face, causing fear among the other tenants. He now appealed against confirmation of the order for possession. He said that there had . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 31 October 2022; Ref: scu.89033