Transcript Remedies for breach of covenant

Jennifer Slade
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Alterations (p.1)
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User (p.4)
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Insurance (p.7)
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Rationale (p.1)
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Structure of the clause
 Structural/non-structural
▪ Demountable partitioning
 Internal/external
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Degrees of control
 Absolute, Qualified, Fully qualified
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Absolute
 No s19 implication of consent/reasonableness
 Statute can override
 E.g.
▪ LTA 1927 Part I – “qualifying improvements”
▪ (See p.3)
▪ DDA 1995
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Qualified covenants (pp.2-3)
 L’s consent
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s19(2) LTA 1927
 Converts qualified alterations covenant to fully
qualified covenant
▪ L’s consent not to be unreasonably withheld
 Alterations must be “improvements”
▪ Lambert v Woolworth
 Reasonableness?
 Remedies
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Note (not on handout):
LTA 1988 does not apply to T.’s applications
for consent to alter.
T. should amend clause to provide that L.’s
consent is not unreasonably withheld or
delayed (consider in any event for
alienation)
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Consequential matters, planning (p.2)
Signs
Compensation for T.’s “qualifying
improvements” under LTA 1927 Part I
 See p.3
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Rationale (p.4)
 Wide/narrow
▪ Rent review – REMEMBER ALWAYS TO CHECK THE
USER COVENANT AGAINST RENT REVIEW
ASSUMPTIONS/DISREGARDS
 Positive/negative drafting
▪ “… to use only for…”
▪ Keep open covenant?
▪ Argyll case – see Workshop 8
▪ “… not to use other than…”
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Restrictive vs Wide vs Compromise
Use Classes Order 1987… amended by
(pp.4-5):
 Use Classes (Amendment)(England) Order 2005
(21 April 2005) – some example changes:
▪ Internet café (A1)
▪ A3 =split into=> A3 (restaurants/cafes), A4 (drinking
establishments), A5 (hot food takeaways)
▪ Nightclub (sui generis)
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Note – e.g. if user in 2004 lease is A3 (subject
to L’s consent), premises used as restaurant,
and T. seeks change to wine bar
 If reference in user clause to UCO as enacted at
date of lease, then L’s consent not needed; BUT
 If reference in user clause to UCO including
amendments,, then L’s consent needed since wine
bars now A4
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UCO
 Certainty?
 Shopping centres?
▪ “open A1”
 Drafting
▪ Freeze UCO use at date of lease?
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Absolute and qualified covenants (p.5)
 s19 LTA 1927 does not imply proviso that L must
be reasonable in w/holding consent to change of
use
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s19(3) LTA 1927
 L. cannot require fine, premium or increased rent
for giving consent
▪ Unless change of use involves structural alterations
 L can require expenses
 Reasonable sum if causes diminution in value
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LTA 1988 does not apply to user covenants
Ancillary covenants (p.6)
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Lease of part/whole (p.7)
“Insured risks”
Tenant noted on policy/joint names
Rent abatement if damaged/destroyed
 Damage to property and access thereto
 Loss of rent insurance and rent abatement
period
 Full cost
 Service of notices
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See p.8
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[NB – review LTA 1954 for next lecture]