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On appeal from: [2018] EWHC Civ 2298

Two of the leases of 11-13 Randolph Crescent are held by the respondent, Dr Duval and a third lease Is held by Ms Martha Winfield. Each lease contains a covenant, clause 2.6, which prevents the lessee from making any alteration or improvement in, or addition to, the premises demised by the lease without the prior consent of the landlord. Each lease contains an absolute covenant, clause 2.7, which prevents the lessee from cutting into any roofs, walls, ceilings or service media. Clause 3.19 requires the landlord to enforce, at the request and cost of the lessee, certain covenants in the leases held by other lessees, including any covenant of a similar nature to clause 2.7. Mrs Winfield sought a licence from the landlord to carry out works to her flat which the landlord granted, subject to Mrs Winfield securing adequate insurance. Dr Duval then issued proceedings against the landlord seeking a declaration that the landlord did not possess the power to permit Mrs Winfield to act in breach of clause 2.7 of her lease. The landlord appealed to the Supreme Court.

The Court unanimously dismissed the landlord’s appeal. Examining the terms of the lease in their context, the Court held that the critical question was whether the landlord could license structural work which falls within the scope of clause 2.7 and which would otherwise be a breach of that clause. As clause 3.19 did not explicitly state that the landlord cannot give a lessee permission to carry out such work, the Court turned to consider whether there was an implied term to that effect. The Court held that there was such an implied term in Dr Duval’s lease: a promise by the landlord not to put it out of its power to enforce clause 2.7 in the leases of other lessees by licensing what would otherwise be a breach of it. Clause 2.7 was an absolute covenant and it would not give practical content to the obligation if the landlord had the right to vary or modify it. Mrs Winfield’s proposed work should require the consent of other lessees, including Dr Duval.

For judgment, please download: [2020] UKSC 18

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website: 10 October 2019 morning and afternoon session.