Lease — Permitted uses — Landlord’s consent to use not to be unreasonably refused — Several leases containing same user covenants — Whether a scheme of development — Whether user covenant enforceable by one lessee against another
In 1982 five units were let by a common landlord on full repairing and insuring terms. Each lease contained a covenant by the tenant to adopt a specified and permitted use of the unit in question. Landlord’s approval was required for such use, or any other use, and that approval was not to be unreasonably refused. Unit no 3 had a permitted user for a double-glazing use and the other four units were in motor-trade uses. The plaintiff held leases of two of these four units; the defendant held leases of the other two.
The plaintiff claimed that there was a scheme of development within the rule of Elliston v Reacber ([1908] 2 Ch 374, affirmed [1908] 2 Ch 665) and that he could enforce the covenants in the defendant’s leases as if they were restrictive covenants. Accordingly he could prevent the defendant from using his units for a competing use in breach of a negative obligation.
Held The motion was dismissed. It could not be said that the presence of one negative obligation in the leases was consistent only with a general scheme where it was the intention of the common landlord and the intending tenants that the user covenants were to be mutually enforceable. One could not infer reciprocity and mutually enforceable covenants from the same permitted user covenant in five leases of adjoining accommodation. In this case it must have been clear to any intending tenant that the landlord had retained the right to control uses and that any tenant could creek consent to a change of use. There were no grounds for implying any interference with the landlord’s right to manage his own estate.
Pearce v Maryon-Wilson
[1935] Ch 188 distinguished.
Stephen Acton (instructed by Winter-Taylors, of High Wycombe) appeared for the plaintiff; and Anthony Speaight (instructed by E D C Lord & Co) appeared for the defendant.
