View Full Version : Enforcement of covenant not to underlet

18-03-2010, 12:27 PM
I live in a period property (flat) comprising of 4 flats in total. The lease includes the covenant not underlet any part of the demised premises. I was made aware of this clause when I bought the property many years ago & I was happy with it !.

A flat in the building has now been sold to a property developer - who has refurbished and sublet.

Can I enforce this covenant against them?, & if I do not - does this impact the right to enforce this covenant at a future point in time against the same person or an alternate lessee


18-03-2010, 12:31 PM
What is the covenant's precise wording? If it merely says "not to underlet part", an underletting of whole would not be a breach.

18-03-2010, 12:44 PM
I will have to check ? and get back to you

But I think it is "not to underlet any part of the demised premises" -would this allow the underlet of the whole ?

18-03-2010, 13:09 PM
If one lets whole, has one let a part? Let's await the precise wording.
There are several cases re the effect of 'part'.
1. 'premises' does not prevent letting 'part': Cook v. Shoesmith [1951]
2. 'whole' prevents letting whole in separate parts: Chatterton v. Terrell [1923]
3. 'any part' prevents letting whole and prevents letting each separate part: Field v. Barkworth [1985]

18-03-2010, 16:33 PM
There is a separate covenent in the lease which reads:

"Not to underlet any part of the Demised Premises"

There is also a further covenant:

"at all times to use and occupy the Demised Premises as and for a private dwelling for the sole occupation of one family"

18-03-2010, 16:54 PM
This sounds like example 3 in my post #4. If so, it prohibits letting of:
a. the whole; or
b. any one part; or
c. several parts, whether or not together amounting to the whole.
Here's the references to the 1985 case mentioned: [1986] 1 WLR 137 or 1 All ER 362. Also see http://www.google.co.uk/search?hl=en&as_q=&as_epq=Field+v.+Barkworth&as_oq=&as_eq=&num=10&lr=&as_filetype=&ft=i&as_sitesearch=&as_qdr=all&as_rights=&as_occt=any&cr=&as_nlo=&as_nhi=&safe=images

18-03-2010, 17:15 PM
Many thanks

How would this be enforced in practice - court order to sell ?

18-03-2010, 17:19 PM
No. L would just threaten to sue; T would cough-up £££ to head-off proceedings. I know; an unfortunate client of mine is doing that right now.

18-03-2010, 17:31 PM
L is actually the same person as T - they dubiously acquired freehold at the same time as one of the flats (no RFR was afforded)

Surely L cannot grant permission anyhow - given that it is a covenent in all of the leases in the building.

Can we enforce the clause against the prop developer (who for the time being is also freeholder)

18-03-2010, 17:36 PM
Can we enforce the clause against the prop developer (who for the time being is also freeholder)
Maybe. Much depends on the precise wording of the lease, esp. L's covenants to T.

18-03-2010, 17:39 PM
many thanks