Lead Forensics
Prettys Solicitors Ipswich

Resources

Landlord’s obligations to enforce lessee’s covenants in residential leases

In the Court of Appeal’s decision in Duval v 11–13 Randolph Crescent Ltd 2018 the court confirmed that a landlord’s obligation to enforce tenants’ covenants at the request of other tenants was enforceable.

The nine tenants of the flats at 11-13 Randolph Crescent in Maida Vale, London held 125-year leases, under which the Landlord as freeholder (being a tenant management company owned by the nine tenants) covenanted with the tenants in the following terms:

“That every lease of a residential unit in the Building hereafter granted by the Landlord … shall contain … covenants of a similar nature to those contained in … 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 … 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 … this Lease.”

This is not an unusual clause to find in a residential lease; it contains two provisions, namely mutual covenants in the tenants’ leases so that all the tenants are bound by the same set of rules, and further provides an enforcement mechanism by which one tenant may ensure that the other tenants observe those rules by requiring the landlord to take action.

The particular covenant that troubled Dr Duval was the covenant “Not to … cut, maim or injure … any roof wall or ceiling within or enclosing the Demised Premises …”.   This covenant amounted to an absolute prohibition since the usual qualification or exception for any works or alterations to which the landlord may consent was absent from the tenants’ leases.

Mrs Winfield, another tenant, wanted to undertake works to her flat involving removal of a wall that would be contrary to the above covenant.  The landlord had given its consent to works and there was no suggestion that the works would have any effect on any other flat. Dr Duvall however did not agree with the works and wished to invoke the enforcement covenant against Mrs Winfield in order to prevent her from undertaking her works contrary to the lease covenant.

The Court of Appeal declared that in giving its consent to Mrs Winfield for the works contrary to the lease terms, the landlord had waived its ability to enforce the lease covenant against the carrying out of works, which in turn amounted to a breach of the landlord’s enforcement covenant.

The question of a remedy was remitted to the county court, and although Dr Duvall won his case at the Court of Appeal, in practice the absence of any impact on Dr Duvall’s flat means it is likely to be difficult to obtain an injunction to prevent the works from going ahead, and any damages in lieu for breach of covenant are likely to be nominal.

Comment

Without the enforcement covenant (or a letting scheme, under which the tenants’ mutual covenants are directly enforceable against each other) a tenant cannot take direct action against a fellow tenant for breach of covenant in a lease.  However, in practice, landlord’s enforcement covenants are not frequently relied upon, as the cost security the tenant must provide to the landlord to indemnify the landlord against all costs and expenses of litigation is likely to dissuade many tenants from asking their landlord to take action.

However, where a tenant is suffering demonstrable detriment as a result of a breach of covenant by a neighbouring tenant (such as obstructing common parts, or failing to carpet floors), then asking the landlord to take action might be the only way of resolving disputes between tenants.

This case is also of interest since the landlord company here was owned by all the tenants and shows how competing interests or clashes in personalities within tenant management companies can result in management problems.

The above case summary is for general guidance and does not constitute specific legal advice. If you have any concerns regarding breaches of covenants in residential leases, whether as landlord or tenant, please contact us for further information at commprop@prettys.co.uk.

« Back

 

 Share

Legal 500LexcelConveyancingChambers UK