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Go West v Spigarolo

Summary

Where a landlord gave the tenant written notice refusing consent to assign a lease, which brought to an end the reasonable time permitted under s.1(3) Landlord and Tenant Act 1988 to respond to the tenant's application, the landlord could not assert that the reasonable time had not elapsed. The landlord was therefore in breach of statutory duty.

Facts

Appeal from the judgment of HH Judge Hornby sitting at Central London County Court by which he held that a landlord's refusal of consent to assign was reasonable. The claimant ('T') was the tenant and the defendants ('L') were the landlords of premises in London. The lease contained a covenant not to assign the whole of the demised premises without having obtained the written consent of the landlord not to be unreasonably withheld. T wished to assign and sought L's consent in March 2001. L refused consent by letter of 30 May 2001. Correspondence continued until on 10 July 2001 T commenced proceedings for a declaration that the consent was unreasonably withheld. The county court judge gave judgment for L on the basis that it was clear from the correspondence that the parties treated the letter of 30 May as having no real effect so that as at 10 July L were not acting unreasonably, having regard to the exigencies of time, in continuing to refuse consent. Both sides appealed. T argued that the effect of the letter of 30 May was to bring to an end the reasonable time allowed to L by s.1(3) Landlord and Tenant Act 1988. L argued that after 30 May the parties were in any event proceeding on the basis that there was a continuing application for licence to assign.

Held

L's letter of 30 May was a refusal of consent to the proposed assignment. L were in breach of statutory duty on that date because they failed within a reasonable time, ie within the time which necessarily expired when they sent the letter of 30 May, to give the consent which, as the judge correctly found, they unreasonably withheld when writing that letter. There was no objectively ascertainable reasonable time which existed independently of, and which was not affected by, L's refusal of consent. The reasonable time in s.1(3) of the 1988 Act was the time reasonably required by L to do what was required of them but once they had served written notice in accordance with s.1(3)(b) they did not require any further time and could not assert that the reasonable time they required had not yet elapsed. Section 1(3) contemplated service by the tenant of a single written application and a single response by the landlord. L were in breach of statutory duty on 30 May and nothing that happened after that date expunged the breach or absolved L from its consequences. There was no estoppel, waiver or release.

Tenant's appeal allowed. Cross-appeal dismissed.

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Judgment
31 Jan 2003

Court of Appeal
Pill, Potter LJJ and Munby LJ

References
LTL 31/1/2003 : [2003] QB 1140 : [2003] 2 WLR 986 : [2003] 2 All ER 141 : [2003] L & TR 24 : [2003] 1 EGLR 133 : [2003] 7 EG 136 (CS) : (2003) 147 SJLB 236 : [2003] 2 P & CR DG3 : Times, February 10, 2003 : Independent, February 13, 2003 : [2003] EWCA Civ 17

Members
Timothy Dutton QC

Practice areas
Real Estate