Re Cyril Wright (A Bankrupt)ex parte Joshua Landau (A Creditor) v The Trustee
| Jurisdiction | England & Wales |
| Date | 1949 |
| Year | 1949 |
| Court | Chancery Division |
Landlord and tenant - Lease - Covenant by tenant not to assign without consent - “Tenant” expressed to include successors in title - Bankruptcy of tenant - Devolution of lease on trustee - Trustee a successor in title.
A covenant in a lease by a tenant (which term was expressed in the lease to include his successors in title) not to assign the lease without the written consent of the landlord, is binding on the trustee in bankruptcy of the tenant as the successor in title of the tenant notwithstanding that the property in the lease devolved on the trustee by operation of law.
MOTION.
By a lease dated April 19, 1947, the applicant, J. Landau, demised to C. Wright a dwelling-house and shop known as 6 Walker's Court, Berwick Street, London, W.1, for a term of twenty-one years from March 25, 1947, at a progressive rent payable half-yearly in advance on March 25 and September 29 in every year. The parties were described in the lease as “Joshua Landau …. (hereinafter called the ‘landlord’ which expression shall where the context so admits include the person for the time being entitled to the reversion immediately expectant on the determination of the term created) of the one part, and Cyril Wright …. (hereinafter called the tenant which expression shall where the context so admits include his successors in title) of the other part.” By cl. 2, sub-cl. 8 of the lease the tenant covenanted “not to assign underlet or part with the possession of the demised premises or any part thereof without the written consent of the landlord such consent not to be unreasonably withheld in the case of a respectable and responsible person.” By cl. 4, sub-cl. 1, the lease provided that “If the rent hereby reserved or any part thereof shall at any time be unpaid for twenty-one days after becoming payable (whether formally demanded or not) or if the covenants on the tenant's part herein contained shall not be performed or observed or if the tenant shall become bankrupt or make any assignment …. it shall be lawful for the landlord at any time thereafter to re-enter upon the demised premises or any part thereof in the name of the whole and thereupon this demise shall absolutely determine but without prejudice to the right of action of the landlord in respect of any antecedent breach of the tenant's covenants herein contained.” On January 20, 1949, the tenant was adjudicated bankrupt and the lease held by him became vested in the respondent as his trustee in bankruptcy. The respondent did not disclaim the lease. He paid rent for six months in advance which was due on March 24, 1949, and the applicant waived his right of re-entry by reason of the bankruptcy of the tenant. The respondent desired to assign the residue of the term granted by the lease to the tenant's wife. The applicant refused his consent to the assignment and on June 20, 1949, the respondent informed him that he intended to complete the assignment whether or no the applicant consented thereto, claiming that he was not bound by the terms of the covenant in the lease by the tenant not to assign without the consent of the landlord. By the motion, the applicant, inter alia, claimed, a declaration that the respondent was bound by the covenant not to assign the lease without the applicant's consent.
V. R. Aronson K.C. and Muir Hunter for the applicant. The question raised by the motion is whether the trustee in bankruptcy of the tenant is bound by the latter's covenant not to assign without the landlord's consent. It is submitted that he is so bound. It was held in Doe v. BevanF1 that a restriction on assigning a lease was not broken by the assignment by operation of law taking place on a bankruptcy. But when Doe v. BevanF1 was decided in 1815, the right of a trustee in bankruptcy to disclaim, which was first introduced in the
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