Summary

While the appellant had been in breach of a tenant's covenant, he had not been afforded enough time to respond and remedy the breach. Four working days to respond to a notice under the Law of Property Act 1925 s.146 had not been a reasonable period.

Facts

The first defendant (B) appealed against a decision that he had forfeited a lease and that accordingly the claimant (C) had been entitled to take possession. B had been the lessee of a flat of which C had been the lessor. Contained within the lease had been a covenant that B not cause a nuisance to C or any of the other residents in the block, and that C maintained a right of entry for, inter alia, breach of that covenant. B granted an underlease to the second defendant (AL) for use of the flat as temporary accommodation. In turn AL granted a sub-underlease to a local housing authority which had granted a non-secure tenancy to the remaining defendants. Neither the underlease nor the sub-underlease contained covenants similar to those contained in the headlease in respect of prevention of a nuisance. From March 2003 complaints had been made concerning nuisances caused by the tenants of the flat and on 2 September 2003 C served a notice on B under the Law of Property Act 1925 s.146 (the s.146 Notice). On 8 September 2003 B had instructed AL to terminate the non-secure tenancy agreement with the tenants and a notice to quit was subsequently served. C issued proceedings on 2 October 2003 seeking forfeiture and damages based upon the disturbances by the tenants. The county court judge found that B had been in breach of the terms of the headlease since his inaction had amounted to suffering a nuisance. The judge accordingly found that B had been liable to the terms of the headlease and that C had therefore been entitled to forfeiture. B appealed from that decision. B argued, inter alia, that the judge had been wrong to have found that he had breached the nuisance covenant since, from the outset, he had sought urgent action to have been taken by AL to abate the nuisance, and that since he had not been a party to the sub-headlease, he had no power himself to have prevented the tenants causing the nuisance. Further, B argued that the issue of proceedings seeking forfeiture had been premature.

Held

(1) It had been right to say, as B had argued, that a covenantee could not suffer what he could not have prevented. However, the evidence in the instant case had showed that B had power to influence an abatement of the nuisance. Further, a lessee, who had been bound by covenants contained within a headlease to prevent a nuisance, had not been entitled to rely on his inability to prevent a sub-lessee from causing a nuisance where he had failed to mirror the provisions of the headlease in the sub-lease. Accordingly, the judge's finding that B had been in breach of the covenant could not be challenged. (2) The order for forfeiture would however be set aside. Given that the s.146 Notice had been served on 2 September, and B had taken action to abate the nuisance on 8 September, B had not been afforded enough time to respond and remedy the breach. In essence B had only four working days to respond to the s.146 Notice which had not been a reasonable period which had been allowed to him by s.146 of the 1925 Act.

Appeal allowed