Tenant dividing flat into two dwellings in breach of covenant – Landlord’s section 146 notice complaining of such division but giving no particulars of relevant works – Whether notice defective – Landlord’s appeal allowed
In 1985 the respondent tenant acquired, as an investment, a lease, then having 54 years unexpired, of a two-bedroom ground-floor flat described as 17 Poynders Court, Clapham. By the terms of the lease, the tenant could not make alterations without the landlord’s consent and was obliged to permit entry by the landlord from time to time to view the condition of the premises. In early October 1992 the landlord observed, from external inspection, various features, notably a rear entrance freshly numbered 17A, indicating that the flat had been converted into two separate dwellings. Following the tenant’s refusal to permit an inspection of the interior, solicitors for the landlord served a notice under section 146 of the Law of Property Act 1925 stating, inter alia, that the tenant had breached his obligations by “making alterations so as to divide [the flat] into two separate studio flats without permission”. At a subsequent county court hearing it was found as a fact that the tenant, having replaced the bathroom with two shower rooms with WC, had put a light partition wall across the flat so as to create two one-bedroom flats, each with its own kitchen. However the judge, while accepting that the case lay on the borderline, found that the section 146 notice was defective in that it had failed to specify the particular breach complained of. The landlord appealed.
Held: The appeal was allowed
It was plain on the highest authority that the statutory duty to specify the breach did not require the landlord to give particulars of each defect: see Fox v Jolly [1916] 1 AC 1. Given that it was addressed to someone who knew or ought reasonably to have known of the state of affairs complained of, the notice had fulfilled the statutory purpose of giving the tenant the opportunity of remedying the breach, the means to be adopted being a matter for the lessee, not the lessor. For that reason, and contrary to the view taken by the trial judge, it was immaterial that the landlord could have obtained a court order directing the tenant to permit a full inspection.
Kim Lewison QC (instructed by Chethams) appeared for the the appellant; Michael Buckpitt (instructed by Aslam & Co, of Gravesend) appeared for the respondent.
