Court of Appeal
Duval v 11–13 Randolph Crescent Ltd
[2018] EWCA Civ 2298
2018 Oct 10; 18
Lewison, Newey LJJ, Sir Stephen Richards
Landlord and tenantCovenantLandlord’s covenant to enforceLong leases containing covenant prohibiting certain worksLandlord covenanting to enforce covenants at lessees’ requestLessee seeking permission to carry out works that would breach absolute covenantWhether licensing of works breaching landlord’s enforcement covenant

The lessee of a flat in a block of nine, each held under a long lease, asked the landlord for permission to carry out improvement works to her flat, which included the removal of part of a load-bearing wall. It was common ground that the works would amount to a breach of a clause in the lease by which the lessee covenanted not to cut a wall that enclosed the demised premises. In each lease the landlord covenanted to enforce any such covenant if the lessee of another flat so requested. The landlord was willing to grant consent to the proposed works. However, the claimant, who was the lessee of another flat in the block, contended that it was implicit in the landlord’s enforcement covenant that the landlord would not put itself out of its power to comply with that covenant, which would be the consequence of granting such consent. The deputy judge declared that the landlord had no power to waive covenants or to grant licences without the consent of the other lessees, but the judge allowed the landlord’s appeal.

On the lessee’s appeal—

Held, appeal allowed. In the circumstances, the waiver by the landlord of a breach of covenant by a lessee or the grant of a licence to commit what would otherwise be a breach of covenant would amount to a breach of the landlord’s enforcement covenant in the leases of other flats. Accordingly, a declaration to that effect would be granted and all further questions of remedy would be remitted to the County Court (paras 27, 32, 34–35, 36, 37).

Short v Stone (1846) 8 QB 358, Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701, HL(E) and Berkeley Community Villages Ltd v Pullen [2007] 3 EGLR 101 considered.

Richard Mawrey QC and George Mallet (instructed by Duval Vassiliades Solicitors) for the lessee.

Edwin Johnson QC (instructed by Ashfords llp) for the landlord.

Nicola Berridge, Solicitor

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