Until very recently, there were occasions when a landlord who had taken a qualified covenant against assigning could find himself in something of a fix. The problem arose in cases where the only ground that might be called reasonable, for refusing consent was a well-founded fear that the proposed assignee was planning to do something on the premises that would amount to a breach of a user restriction in the lease – a situation where, paradoxically, the financial strength of the assignee could only add to the landlord’s anxieties.
The reason for such anguish lay in the decision of the Court of Appeal in Killick v Second Covent Garden Property Co Ltd [1973] 1 WLR 658, where it was held (although in somewhat debatable terms) that a landlord placed in the situation described could not possibly advance a reasonable ground for refusing a licence, because the change of tenant would not affect the enforceability of the user restriction.
Well Killick is dead, and not all that decently buried by the House of Lords in Ashworth Frazer Ltd v Gloucester City Council [2001] UKHL 59; [2002] 1 EGLR 15. Not one of their lordships doubted that you could find a landlord who would quite reasonably shrink from the prospect of doing battle at various levels with the unwelcome newcomer.
As pointed out by Sandi Murdoch in
Until very recently, there were occasions when a landlord who had taken a qualified covenant against assigning could find himself in something of a fix. The problem arose in cases where the only ground that might be called reasonable, for refusing consent was a well-founded fear that the proposed assignee was planning to do something on the premises that would amount to a breach of a user restriction in the lease – a situation where, paradoxically, the financial strength of the assignee could only add to the landlord’s anxieties.
The reason for such anguish lay in the decision of the Court of Appeal in Killick v Second Covent Garden Property Co Ltd [1973] 1 WLR 658, where it was held (although in somewhat debatable terms) that a landlord placed in the situation described could not possibly advance a reasonable ground for refusing a licence, because the change of tenant would not affect the enforceability of the user restriction.
Well Killick is dead, and not all that decently buried by the House of Lords in Ashworth Frazer Ltd v Gloucester City Council [2001] UKHL 59; [2002] 1 EGLR 15. Not one of their lordships doubted that you could find a landlord who would quite reasonably shrink from the prospect of doing battle at various levels with the unwelcome newcomer.
As pointed out by Sandi Murdoch in Reasonable refusal Estates Gazette 1 December 2001, p126, cases can still arise where such a landlord would be held to have acted unreasonably on the particular facts. What the court could not accept was the proposition that he would invariably be so acting.
