Dr Julia Duval v 11-13 Randolph Crescent Ltd

JurisdictionEngland & Wales
JudgeLady Black,Lady Hale,Lord Kitchin,Lord Carnwath,Lord Sales
Judgment Date06 May 2020
Neutral Citation[2020] UKSC 18
Date06 May 2020
CourtSupreme Court
Duval
(Respondent)
and
11–13 Randolph Crescent Ltd
(Appellant)

[2020] UKSC 18

before

Lady Hale

Lord Carnwath

Lady Black

Lord Kitchin

Lord Sales

Supreme Court

Easter Term

On appeal from: [2018] EWCA Civ 2298

Appellant

Joanne Wicks QC

Emer Murphy

(Instructed by Ashfords LLP (London))

Respondent

Richard Mawrey QC

George Mallet

(Instructed by Duval Vassiliades)

Heard on 10 October 2019

Lord Kitchin

( with whom Lady Hale, Lord Carnwath, Lady Black and Lord Sales agree)

1

The issue to which this appeal gives rise is whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the leases of the other flats require the landlord to enforce such covenants at the request and cost of any one of the other lessees. As the Court of Appeal observed, such covenants are common and so the issue is an important one.

2

This particular dispute concerns the leases of the flats in 11–13 Randolph Crescent in Maida Vale. The leases are, in all relevant respects, in substantially the same form and each of them contains an absolute covenant, clause 2.7, which prevents the lessee from cutting into any roofs, walls, ceilings or service media. They also contain a landlord's covenant, clause 3.19, requiring it to enforce, at the request and cost of any lessee, certain covenants in the leases held by the other lessees, including any covenant of a similar nature to clause 2.7. It is accepted that such clauses are commonly found in the leases of flats located in apartment blocks. The question is whether the grant by the landlord to a lessee of a licence to carry out an activity falling within clause 2.7 amounts to a breach of clause 3.19 of its agreements with all of the other lessees.

The leases
3

11–13 Randolph Crescent comprises what were originally two mid-terrace houses, but it is now a single block separated into nine flats. It formed part of the Church Commissioners' Maida Vale estate. In the 1980s the Church Commissioners granted long leases to purchasers of the flats. The term of each of the leases was 125 years from 24 June 1981. Two of the leases (those of flats 11G and 11H) are now held by the respondent, Dr Julia Duval. A third lease (that of flat 13RC) is held by Mrs Martha Winfield.

4

By a transfer dated 17 June 1986 the freehold of the building was transferred to the appellant landlord. The landlord is also the management company. All of the shares in the landlord are owned by the leaseholders of the flats, as the leases themselves require.

5

The lease of each flat demises the internal parts of the flat including all internal non-load bearing, non-dividing walls; one half (severed vertically) of internal, non-load bearing, dividing walls; the internal surfaces of external walls and of load bearing walls; the floor and horizontal structures underneath the floor; the ceiling of the flat, but not the horizontal structures immediately above it; and conduits exclusively serving the flat. But the lease expressly excludes, among other things, the outer and load bearing walls of the building; load bearing or structural columns and beams; the external surfaces of window frames; and any conduits not exclusively serving the flat.

6

The lessees' obligations are set out in clause 2. They include covenants to pay the reserved rents and service charges (clause 2.1 and the third schedule); covenants to repair, clean and decorate the demised premises (clauses 2.4 and 2.5); covenants to permit the landlord's agents to enter the premises and, among other things, construct any “building or erection” on any land adjoining or neighbouring the building or the demised premises (clause 2.8); and covenants aimed at securing that the lessees of the flats, and they alone, hold shares in the management company, that is to say the landlord (clause 2.10.4).

7

Clause 2.6 is concerned with alterations, improvements and additions and reads:

“Not without the previous written consent of the Landlord to erect any structure pipe partition wire or post upon the Demised Premises nor make or suffer to be made any alteration or improvement in or addition to the Demised Premises.”

8

This is therefore a covenant which is qualified by reference to the landlord's consent. However, by operation of section 19(2) of the Landlord and Tenant Act 1927, such consent is not to be unreasonably withheld.

9

Clause 2.7 is entitled “waste” and reads:

“Not to commit or permit or suffer any waste spoil or destruction in or upon the Demised Premises nor cut maim or injure or suffer to be cut maimed or injured any roof wall or ceiling within or enclosing the Demised Premises or any sewers drains pipes radiators ventilators wires and cables therein and not to obstruct but leave accessible at all times all casings or coverings of Conduits serving the Demised Premises and other parts of the Building.”

10

In contrast to clause 2.6, this is an absolute covenant. There are two further aspects of it that I must mention at this stage. First, there may be thought to be a degree of overlap between the activities to which it refers and those the subject of clause 2.6. For example, improvements and alterations, which are the subject of clause 2.6, may involve removing and replacing radiators, wiring, cabling and the like, and these are activities which are specifically mentioned in clause 2.7. The common approach of the parties was that clause 2.7 therefore sets boundaries to the activities that fall within clause 2.6. In other words, any activity which falls within the scope of clause 2.7 is necessarily outside the scope of clause 2.6. That is of course one possible interpretation of the relationship between them. But it is not the only one and for reasons to which I will come, it is not one which I favour.

11

Secondly, although not qualified by reference to the landlord's consent, it is common ground that, as between the landlord and the lessee, the landlord has the power to license what would otherwise be a breach of this covenant. But, as the Court of Appeal emphasised, it does not follow that by doing so the landlord will not be in breach of a collateral contract as between the landlord and another lessee. Here, and as will become clear, Dr Duval contends that there is such a collateral contract and that by granting such a licence the landlord will be acting in breach of its terms, and in particular clause 3.19.

12

Clause 2.14.2 requires the lessee to pay to the landlord all costs, charges and expenses it incurs on any application by the lessee for any licence or consent in connection with the lease.

13

The fifth schedule to each lease contains various rules and regulations about the use of the property with which the lessee must comply. These include prohibitions on allowing rubbish to accumulate in the flat, playing musical instruments at certain times of day, hanging clothes outside the flat, placing window boxes on external windowsills, and parking cars in any yard, garden or driveway of the building.

14

The landlord's covenants are set out in clause 3. They include a covenant that the lessee shall have quiet enjoyment of the demised premises (clause 3.1); a covenant to maintain and keep in good and substantial repair the main structure of the building and all of the conduits and ducts in the building (save for those which exclusively serve any of the demised premises) (clause 3.3); covenants to maintain, cleanse and keep in good and substantial repair the common parts of the building (clause 3.4); and covenants periodically to decorate the building and the common parts (clauses 3.5 and 3.6).

15

Clause 3.19 is of particular importance and reads:

“… every lease of a residential unit in the Building hereafter granted by the Landlord at a premium shall contain regulations to be observed by the tenant thereof in similar terms to those contained in the Fifth Schedule hereto and also covenants of a similar nature to those contained in clauses 2 and 3 of this Lease AND at the request of the Tenant and subject to payment by the Tenant of (and provision beforehand of security for) the costs of the Landlord on a complete indemnity basis to enforce any covenants entered into with the Landlord by a tenant of any residential unit in the Building of a similar nature to those contained in clause 2 of this Lease.”

The dispute and the judgments below
16

In the spring of 2015, Mrs Winfield approached the landlord's managing agents for a licence to carry out proposed works to flat 13RC. These works would involve, among other things, removing a substantial part of a load bearing wall at basement level. It was common ground that they would amount to a breach of clause 2.7 of Mrs Winfield's lease if not specifically authorised by the landlord. Progress was made towards the agreement of a licence but, the proposed works having come to the attention of Dr Duval and her husband and they having objected, the licence was refused. However, following presentations by the engineers and architects acting for Mrs Winfield, the landlord reconsidered the matter and, having done so, decided it was minded to grant a licence, subject to Mrs Winfield securing adequate insurance.

17

In December 2015 and then again in February 2016, Dr Duval asked the landlord to secure an undertaking from Mrs Winfield not to act in contravention of clause 2.7 of her lease by cutting or maiming any of the load bearing or structural walls within flat 13RC. On both occasions, Dr Duval said that the landlord would be indemnified if legal action became necessary. On 12 May 2016 Dr Duval began these proceedings by issuing a claim form against the landlord seeking, among other things, a declaration that the landlord did not possess the power to permit Mrs Winfield to act in...

To continue reading

Request your trial
8 cases
5 firm's commentaries
  • Commercial Landlord And Tenant Round-up 2020: Key Decisions Despite Covid Chaos
    • United Kingdom
    • Mondaq UK
    • 3 December 2020
    ...covenants During the UK's first national lockdown the Supreme Court published its decision in Duval v 11 - 13 Randolph Crescent Ltd [2020] UKSC 18 - a case of particular importance for landlords of multi-let Covenants containing absolute prohibitions against carrying out certain acts or wor......
  • What is Duvalue of an absolute covenant in a lease?
    • United Kingdom
    • JD Supra United Kingdom
    • 12 May 2020
    ...Lindberg, Joe Barnes] On 6 May 2020, the Supreme Court handed down its judgment in the case of Duval v 11-13 Randolph Crescent Limited [2020] UKSC 18. The question considered by the court was whether a landlord of a block of flats could consent to a tenant carrying out works which would amo......
  • What is Duvalue of an absolute covenant in a lease?
    • United Kingdom
    • LexBlog United Kingdom
    • 12 May 2020
    ...May 2020, the Supreme Court handed down its judgment in the case of Duval v 11-13 Randolph Crescent Limited [2020] UKSC 18. The question considered by the court was whether a landlord of a block of flats could consent to a tenant carrying out works which would amount to a breach of covenant......
  • UK Supreme Court Offers Lessons For Landlords Of Multi-tenanted Buildings In Cayman
    • Cayman Islands
    • Mondaq Cayman Islands
    • 10 August 2020
    ...in apartment blocks. The enforcement of such a covenant was considered by the UK Supreme Court in Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18. While such mutual-enforceability covenants are the best of the author's knowledge) not used in the Cayman Islands, the decision offers import......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT