Lessee covenanting to use flat solely as a private residence “in single occupation” – Lessor declaring that he would apply restrictive interpretation should flat be sold for occupation by friends or unmarried couple – Lessee seeking declaration showing lessor to be in error – Whether court engaged in purely hypothetical exercise – Declaratory relief refused
The plaintiff and the defendant were respectively lessor and lessee under a 99-year lease, granted in 1972, of a flat in a converted house in London W5. The defendant lived in one of the other two flats in the same house and was anxious that the house should not become, in his words, “a house in multi-occupation”. Clause 2(20) of the lease contained a covenant by the lessee “not to use or suffer to be used the flat otherwise than as a private residence in single occupation”. Over a period of 18 months the defendant, knowing that the plaintiff was anxious to sell her flat, wrote a number of letters (the correspondence) to the plaintiff and the plaintiff’s solicitors intimating that “in single occupation” should be narrowly construed, and that he would make his views known and pass copies of the correspondence to any prospective purchaser of the defendant’s flat. In particular he asserted that he would treat occupation by a childless, unmarried couple as a breach of the covenant unless they had executed a binding agreement containing mutual obligations of a marital nature.
Over the period of the correspondence the plaintiff tried unsuccessfully to sell her flat and was able to cite a particular instance of a sale going off after the buyer had learned of the defendant’s attitude. Having failed to persuade the defendant that his interpretation of the covenant was wrong, the plaintiff sought a declaration that upon its true construction the clause restricted the lessee to use the premises “as a private residence in the occupation of a single household unit, that is by any persons living together as a family or as friends without any subletting or assignment or parting with possession of any part of the demised premises as between themselves”. In the alternative the plaintiff invited the court to make a series of declarations, directed to such of the of the defendant’s assertions as were plainly wrong.
Held The plaintiff was not entitled to declaratory relief.
1. Though there was a dearth of authority on the words in issue, the defendant was plainly wrong in asserting that occupation by an unmarried couple or two or more friends would inevitably amount to a breach of the covenant. However, that did not assist the plaintiff, because in each case of alleged breach the question would be one of fact and degree: see Segal Securities v Thoseby [1963] 1 QB 887, in which the phrase “in the occupation of one household only” was considered. The court could not grant relief in the terms sought without purporting to legislate in advance for all possible circumstances. Such a hypothetical exercise was not permissible: see Re Barnato Dec’d [1949] 1 Ch 258; Re Clay [1919] 1 Ch 66; Naylor v Wrotham Park Settled Estates [1987] NPC 25.
2. The same objections applied to the alternative claim for relief, which the court could not accede to without making a series of academic assertions.
3. No order would be made as to costs.
Katherine McQuail (instructed by Lock & Marlborough) appeared for the plaintiff; Catherine Taskis (instructed by Wismayers) appeared for the defendant.
