Edlington Properties Limited v J H Fenner and Co Limited: CA 22 Mar 2006

The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in the first place.
Held: The new landlord was not liable for the failings of the old, and the tenant could not set off any claim in damages from the original lessee against arrears of rent: ‘the weight of principle, authority and textbooks all point firmly in the same direction. Where the reversion to a lease is transferred, a tenant cannot set off, against rent falling due after the transfer, a claim for damages he has arising out of a breach by his original landlord of the lease, let alone of the agreement pursuant to which the lease was granted, unless of course the lease specifically provides that he should have that right.’

Lord Justice Pill Lord Justice Neuberger Lord Justice Scott Baker
Times 12-May-2006, [2006] EWCA Civ 403, [2006] 1 WLR 1583
Bailii
Law of Property Act 1925 141, Landlord and Tenant Covenants Act 1995 3
England and Wales
Citing:
Appeal fromEdlington Properties Ltd v J H Fenner and Co Ltd QBD 20-Oct-2005
The landlord sought repayment of arrears of rent. The tenant sought to raise a set off which had arisen against the landlord’s predecessor arising from defects in the property they had constructed.
Held: The tenant had no right of set off. . .
CitedBritish Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
CitedSpencer’s Case 1583
An assignee of a lease will take both the benefit and burden of the covenants in the lease provided that there is privity of estate as between the person enforcing the covenant and the person against whom enforcement is sought, and the covenant . .
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 . .
CitedDuncliffe v Caefelin Properties Ltd ChD 1989
The defendants had taken an assignment of the reversion of a flat held on a long lease. The assignors had gone into liquidation when in prolonged breach of the lessor’s repairing covenant. The lessee asserted that the effect of s.142 on an . .
CitedReeves v Pope CA 1914
The potential landlord agreed with the proposed tenant to build a hotel by a date, and the tenant agreed to take a lease when it was ready. The building was late in completion. The tenant took the lease but without prejudice to his claim for . .
CitedPfeiffer GmbH v Arbuthnot Factors Limited 1988
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 . . .
CitedNational Provincial Bank Limited v Ainsworth HL 1965
The significance of the distinction between occupation and rights was that although the deserted wife was in actual occupation of the former matrimonial home, the quality of her rights was not such as to be capable of amounting to an overriding . .
CitedThe Mortgage Corporation Ltd v Ubah CA 21-Mar-1996
The respondent mortgagee had obtained an order for possession against the mortgagor freeholder, referred to in the judgment as ‘the Chief’, who had, prior to the mortgage, granted a tenancy to the appellant.
Held: The landlord’s retention of a . .
CitedRe Arrows Ltd (No 3) ChD 1992
Hoffmann explained the case of Reeves v Pope: ‘The reasoning of the Court of Appeal was that a mortgagee or transferee of a property subject to a lease does not become entitled to the rents . . as an assignee [of] a chose in action by the original . .
CitedLee-Parker v Izzett (1) ChD 1971
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the . .
CitedGreen v Rheinberg CA 1911
. .
CitedFederal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
CitedGovernment of Newfoundland v Newfoundland Railway PC 7-Feb-1888
A railway company and its assignees brought action the Government. Under the contract the company was to build a railway subsidised by the government. The railway was not completed. The parties disputed whether the contract was ‘entire’ and no part . .
CitedBeall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .
CitedLotteryking Ltd v AMEC Properties Ltd ChD 1995
The tenant sought to prevent the sale of the landlord’s reversion until the lessor’s repairing obligations had been met. One of the grounds was that on a sale the tenant’s right of set-off would not pass.
Held: An order was refused. Lightman . .
CitedFamous Army Stores v Meehan 1993
. .
CitedBOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
CitedMellowes Archital Limited v Bell Projects Limited CA 15-Oct-1997
The court referred to ‘the distinction between the common law defence of abatement and the defence of equitable set-off’. . .
CitedConnaught Restaurants Ltd v Indoor Leisure Ltd CA 17-Sep-1993
The lease provided the tenant would pay the rent ‘without any deduction’.
Held: The words ‘without any deductions’ in a lease were ambiguous and were insufficient to exclude the tenant’s right to claim a set off. Clear words are needed before . .
CitedMarubeni Corporation v Sea Containers Ltd ComC 17-May-1995
Procedure – set-off – contract for supply of containers – construction of contract – clear words to exclude right of set-off – equitable set-off – abatement – defective containers. The words ‘without deduction’ have been held in the context of a . .

Lists of cited by and citing cases may be incomplete.

Construction, Landlord and Tenant

Updated: 05 December 2021; Ref: scu.241388

Lee-Parker v Izzett (1): ChD 1971

Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the case of Taylor v Beal: ‘I do not think this is bound up with technical rules of set off. It is an ancient common law right. I therefore declare that so far as the repairs are within the express or implied covenants of the landlord, the third and fourth defendants are entitled to recoup themselves out of future rents and defend any action for payment thereof. It does not follow however that the full amount expended by the third and fourth defendants on such repairs can properly be treated as payment of rent. It is a question of fact in every case whether and to what extent the expenditure was proper.
For the sake of avoiding misunderstanding I must add that of course the Taylor v Beal right can only be exercised when and so far as the landlord is in breach and any necessary notice must have been given to him.’

Goff J
[1971] 1 WLR 1688, [1971] 3 All ER 1099
England and Wales
Citing:
CitedBeall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .

Cited by:
CitedSmith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
CitedAndrews and Another v Brewer and Another CA 17-Feb-1997
Tenants challenged an order for possession, saying the form of notice was defective. The date specified in the notice was clearly a clerical error. It provided that the tenancy would commence on 29 May 1993 and end on 28 May 1993, on the face of it, . .
CitedGraham v Pitkin PC 9-Mar-1992
A delay in completion was not challenged by a notice to complete; mere delay may itself be repudiatory. Specific performance was considered. As to Lee-Parker v Izzett, the Board doubted the finding that there was no contract in that case, because . .
CitedThe Mortgage Corporation Ltd v Ubah CA 21-Mar-1996
The respondent mortgagee had obtained an order for possession against the mortgagor freeholder, referred to in the judgment as ‘the Chief’, who had, prior to the mortgage, granted a tenancy to the appellant.
Held: The landlord’s retention of a . .
CitedEdlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
CitedBritish Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
See AlsoLee-Parker v Izzett (2) 1972
A contract was exchanged subject to ‘the purchaser obtaining a satisfactory mortgage’.
Held: A contract which is said to be conditional, but where the condition is not expressed clearly or is too imprecise as in this case, may be void for . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 05 December 2021; Ref: scu.185861

Cutter and Others v Pry Ltd: UTLC 20 May 2014

UTLC LEASEHOLD ENFRANCHISEMENT – collective enfranchisement – flats – definition of specified premises – whether enfranchisement could extend to car parking spaces and gardens – whether the reversioner is entitled to vary the rights offered in lieu of purchase so as to introduce the word ‘reasonable’ – true construction of terms of lease.

[2014] UKUT 215 (LC)
Bailii
England and Wales

Landlord and Tenant

Updated: 04 December 2021; Ref: scu.526452

76 Warstones Gardens – Wolverhampton : Midland : Birmingham: LVT 8 Apr 2014

Service Charges
Service Charges

[2014] EWLVT BIR – LV – SVC – 00CW – 0, [2014] EWLVT BIR – LV – SVC – 00CW – 0
Bailii, Bailii
England and Wales
Citing:
See Also76 Warstones Gardens – Wolverhampton : Midland : Birmingham LVT 19-Feb-2013
Service Charges . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 03 December 2021; Ref: scu.524528

Scottish and Newcastle Plc v Raguz: CA 24 Jul 2003

Leases had been granted. They had been assigned to the defendant who had assigned them again. The last assignee became insolvent and statutory demands were served on the claimant under the 1995 Act for rent. The claimant paid the sums due and now sought them from the defendant. He countered that his obligation under the 1925 Act was as guarantor, and that his obligation might be discharged by a claimant’s wrongful act.
Held: The 1925 Act implied an obligation of indemnity, and was unaffected by any act of the claimant.
The indemnity applied also to any VAT charged to the rent: ‘The original lease constituted a contract for a relevant supply by the landlord to the tenant for which the rent covenanted to be paid was consideration. In view of the terms of s. 89(3) it is indisputable that when the lessor opted to tax the supply there was a change in the VAT charged on that supply. That change occurred before the supplies with which this claim is concerned were rendered. Accordingly the express terms of s. 89(1) requires VAT at the relevant rate to be added to the rent as part of the consideration for the supply by the Lessor to the Tenant. In my view it follows that the default of the Tenant in paying the rent including the VAT thereon falls within the terms of the implied covenant because it constitutes a failure to pay the rent ‘by and in the registered lease reserved and contained’ as amended in accordance with s. 89(1).’

Lord Justice May Lord Justice Sedley The Vice-Chancellor
[2003] EWCA Civ 1070, Times 09-Sep-2003, [2004] LandTR 11
Bailii
Land Registration Act 1925 24(1), Landlord & Tenant (Covenants) Act 1995
England and Wales
Citing:
CitedYeoman Credit Ltd v Latter CA 1961
The distinction between contracts of guarantee and indemnity are real and important and to be retained. . .
CitedHarris v Boots Cash Chemists (Southern) Ltd ChD 30-Jun-1904
The case concerned the question whether an original lessee could enforce by injunction against a successor in title to the term, a provision in a lease precluding alteration without consent. The ground on which he sought to do so was a covenant by . .
CitedButler Estates Company Ltd v Bean CA 1942
. .
CitedAllied London Investments Ltd v Hambro Life Assurance Ltd (No 2) ChD 1984
The lessors sued the original lessees for rent due under the lease after the term had been assigned to another. The lessors had given a licence to assign and the licence contained a guarantee from a third party to the lessors that the assignee would . .
CitedRPH Ltd v Mirror Group (Holdings) Ltd 1993
. .

Cited by:
See AlsoScottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .
See AlsoScottish and Newcastle Plc v Raguz ChD 27-Jul-2004
The claimant had previously assigned its interest in a lease to the defendant, who had in turn re-assigned it. The eventual tenant became insolvent, and the landlord had recovered sums from the claimant who now sought an indemnity under the covenant . .
See AlsoScottish and Newcastle Plc v Raguz ChD 11-Apr-2006
The defendant had taken assignments of the term of two underleases from the claimant, and then re-assigned them to a limited company with guarantors of the rent, and they in turn re-assigned the leases. The last company became insolvent. The . .
See AlsoScottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
CitedMason v Boscawen ChD 18-Dec-2008
The landlord had opted to charge VAT on part of the rent. The tenant fell into arrears and now challenged a notice to quit which included the VAT. The court was asked what constituted ‘rent’ for the purposes of a demand for rent founding a notice to . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Registered Land

Updated: 30 November 2021; Ref: scu.184868

Morshead Mansions Ltd v Di Marco: CA 12 Feb 2014

The court was asked whether it had power to award a mandatory injunction to enforce against a landlord its obligations to provide information about service charges to tenants under the 1985 Act.
Held: The landlord’s appeal failed. The principle remedy was that provided by criminal enforcement.

Patten, Lewison, Sharp LJJ
[2014] EWCA Civ 96, [2014] 2 All ER 773, [2014] 1 P andCR 20, [2014] CP Rep 22, [2014] L and TR 13, [2014] 1 WLR 1799, [2014] HLR 28, [2014] WLR(D) 74
Bailii, WLRD
Landlord and Tenant Act 1985 21
England and Wales

Landlord and Tenant

Updated: 29 November 2021; Ref: scu.521159