Smith and Another v Jafton Properties Ltd: CA 2 Nov 2011

The landlord challenged the right of the tenants to acquire the freehold. Lessees had been subdivided the apartments and then, without the landlord’s consent, assigned them. The new arrangement had increased the number of qualifying tenancies so as to create a right to enfranchisement. The landlord said this was artificial, and having been done without his consent was ineffective.
Held: The ruse was effective. At common law, an assignment of part of a leased property by which all of the leased property is physically severed has the effect that the holder of each severed part becomes the tenant of the severed part only. Whilst the statute had not envisaged such a scheme, it could not be said to be ineffective.
Lord Neuberger MR considered that the case law established that, at common law: ‘i) The assignee’s liability to pay the rent and perform the obligations of the lessee depend on privity of estate alone;
ii) If the assignee is the assignee of part only of the leased property then the rent and other obligations for which he is liable are those referable to the part of the leased property assigned to him;
iii) He is not liable for the rent or other obligations referable to the part of the leased property that has not been assigned to him;
iv) The rationale for these propositions is that the assignee only has privity of estate as regards the part of the leased property of which he is the assignee. He has no privity of estate as regards that part of the leased property that has not been assigned to him;
v) The landlord may enter any part of the leased land and distrain for the rent for the whole. But the remedy of distress has nothing to do with privity of estate, save to the extent that a relation of landlord and tenant must exist.’


Lord Neuberger MR, Aikens, Lewison LJJ


[2011] EWCA Civ 1251, [2011] WLRD 314




Leasehold Reform Housing and Urban Development Act 1993 5


England and Wales


CitedSpencer’s Case KBD 1572
. .
CitedCongham v King 1631
An action in covenant would lie against an assignee of part of the land comprised in a lease for not repairing his part. Such a covenant was divisible and followed the land. . .
CitedGamon v Vernon 1793
The landlord sued an assignee of half the land for half the rent. He defended on the ground that he was not liable for any part of the rent because both privity of contract and privity of estate remained in the original tenant.
Held: The . .
CitedCorporation of City of London v Fell and Others HL 3-Dec-1993
The original tenant under a lease was not liable for arrears of rent on a tenancy continued after an assignment and after the original contract term has ended. The right of a transferee of the reversion to recover rent is, both in common law and . .
CitedCity of London Corp v Fell and Others: Herbert Duncan Ltd v Cluttons (A firm) CA 31-Mar-1993
An original Tenant is not liable for arrears arising on the tenancy extended by an assignee beyond the original term.
The vesting of the leasehold estate in the tenant carried with it the burden of covenants that touched and concerned the . .
CitedStevenson v Lambard 6-Jul-1802
The landlord brought an action in covenant against an assignee of the term claiming rent. The assignee pleaded (amongst other things) that he had been evicted from half the land by title paramount. The question for the court was whether, in those . .
CitedDooner v Odlum 1914
(Kings Bench Division – Ireland) Dodd J said: ‘The rent, according to the authorities I have cited, is divisible. There is absolutely no evidence and no presumption upon which to found an inference that she holds an undivided share in the lands . .
CitedDooner v Odlum 2-Jan-1914
(Court of Appeal – Ireland) The court affirmed the decision in the King’s Bench.
Cherry LCJ said: ‘The law is, I think, well settled that where a lessee of demised premises assigns portion of these premises to a stranger, the assignee is liable . .
CitedUnited Dairies Ltd v Public Trustee 1922
Greer J discussed the effect in law of the division and assignment of a tenanted property: ‘Where the leased property has been physically divided amongst two or more assignees it is clear that the obligations of the lease, so far as they affect the . .
CitedHolloway And Another v Berkeley 1826
The court considered the law applicable to heriots, an incident of manorial tenures such as copyhold. Bayley J said that where a tenement is subdivided ‘each tenant holds his share in severalty.’ . .
CitedCurtis And Others, Executors of Curtis v Spitty KBD 27-May-1834
The landlord had sued the defendant for the whole of the rent. He pleaded that all the interest of the lessee in the lease and the demised land had been assigned to the defendant. The defendant denied that plea. Issue was joined on that question. At . .
CitedWhitham v Bullock CA 1939
The assignee of part of the property comprised in the lease had paid the whole rent in order to stave off a threatened distress. He then sued the assignee of the other part for a contribution.
Held: He succeeded.
Counsel for the . .
CitedLester v Ridd CA 1990
A farm with 23 acres was let in 1902. The term passed to Alfred and William Burge, a father and son farming in partnership. On the later dissolution of the partnership, the house and five acres of land were assigned to Alfred and the remaining 18 . .
CitedGammon v Vernon 1729
The lessor brought debt against the assignee of the moiety of the term for the moiety of the rent reserved on the lease, arid it was resolved by the whole Court, that the action well lay. . .
MentionedHare v Cator 1778
Declaratiori against the defendant as assignee of all the estate, andc. in certain premises: evidence that he is assignee of part only is a fatal variance. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 September 2022; Ref: scu.448092