Ashworth Frazer Ltd v Gloucester City Council
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1999 |
| Date | 21 December 1999 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Waller and Lord Justice Chadwick.
Landlord and tenant - landlord's belief that assignee would breach user restriction - belief no ground for withholding consent to assignation
The belief of a landlord, however reasonable, that a proposed assignee intended to use demised premises for a purpose which would give rise to a breach of covenant was not, of itself, a ground for withholding consent to an assignment.
The Court of Appeal so held in a reserved judgment allowing the appeal of the claimant tenant, Ashworth Frazer Ltd, against the decision of Mr David Donaldson, QC, sitting as a deputy judge of the Chancery Division on February 24, 1999, that, inter alia, the defendant landlord, Gloucester City Council, could refuse consent to an assignment of land on the ground that the purpose for which the assignee intended to use the land would be in breach of a user restriction in the lease.
Mr Kim Lewison, QC, for the tenant; Mr Nigel Davis, QC and Mr Andrew Westwood for the council.
LORD JUSTICE CHADWICK said that Killick v Second Covent Garden Property Co LtdWLR ((1973) 1 WLR 658) precluded the court from holding that the belief of the landlord, however reasonable, that the proposed assignee intended to use the demised premises for a purpose which would give rise to a breach of a user covenant was, of itself, a ground for withholding consent to assignment.
Provided that, when giving consent to the assignment, the landlord did not disable himself, necessarily and inevitably, by waiver, or estoppel, or otherwise, from continuing to insist on due observance of the user covenant by the assignee, he was in no worse a position, following assignment...
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