Landlord's Obligations

In the recent case of Duval v 11-13 Randolf Crescent Ltd [2018] EWCA Civ 2298, the Court of Appeal considered whether a landlord will be in breach of its covenant to enforce tenant covenants if it grants consent to works which would otherwise be in breach of an absolute covenant in the lease.

Background

This case concerns a block of nine flats in Randolph Crescent, Maida Vale, each of which is held under a long lease. In 2015, the lessee of one of the flats, Mrs Winfield, requested the landlord's consent to proposed works to her flat which included the removal of a load-bearing wall. The landlord was willing to grant its consent to the works, however, another lessee, Dr Duval, said that the terms of the lease prohibited the landlord from doing so.

Mrs Winfield had covenanted at clause 2.6 of her lease "not without the previous written consent of the Landlord to erect any structure pipe partition wire or post upon the Demised Premises nor make or suffer to be made any alteration or improvement in or addition to the Demised Premises." As this is a qualified covenant, it is subject to an implied statutory proviso that consent will not be unreasonably withheld.

Mrs Winfield also covenanted at clause 2.7 "not to commit or permit or suffer any waste spoil or destruction in or upon the Demised Premises nor cut maim or injure or suffer to be cut maimed or injured any roof wall or ceiling within or enclosing the Demised Premises or any sewers drains pipes radiators ventilators wires and cables therein ..." This is an absolute covenant and so the lease does not provide for the landlord to grant its consent to an act which would otherwise amount to a breach of this clause.

The landlord, meanwhile, had given a covenant in the following terms:

Clause 3.19 - "That every lease of a residential unit in the Building hereafter granted by the Landlord at a premium shall contain ... covenants of a similar nature to those contained in Clauses 2 and 3 of this Lease AND at the request of the Tenant and subject to payment by the Tenant of (and provision beforehand of security for) the costs of the Landlord on a complete indemnity basis to enforce any covenants entered into with the Landlord by a tenant of any residential unit in the Building of a similar nature to those contained in clause 2 of this Lease."

Dr Duval sought to rely upon this clause which essentially has two elements: 1) a promise that each lease would contain similar legally binding obligations on...