Timothy Taylor Ltd v Mayfair House Corporation and another
| Jurisdiction | England & Wales |
| Judge | Mr. Alan Steinfeld |
| Judgment Date | 10 May 2016 |
| Neutral Citation | [2016] EWHC 1075 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2015-004020 |
[2016] EWHC 1075 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice. Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Alan Steinfeld QC
(sitting as a Deputy Judge of the Chancery Division)
Case No: HC-2015-004020
Mr. J. Seitler Q.C (instructed by Messrs Berwin Leighton Paisner LLP) for the Claimant
Ms. K. Holland Q.C. (instructed by Messrs Nicholas & Co.) for the Defendants
Hearing dates: 7 th, 8 th, 11 th, 12 th, 13 th, 14 th, 15 th, 18 th, 19 th April, 2016
Judgment Approved
Mr. Alan Steinfeld Q.C.:
Introduction
This action raises in an acute form the conflict between a landlords's right to build reserved to it in a lease and the tenant's right to enjoy the demised premises pursuant to the landlord's covenant for quiet enjoyment contained in the lease and/or the landlord's implied covenant not to derogate from the grant.
The Claimant, Timothy Taylor Ltd ("the Tenant"), represented by Mr Jonathan Seitler QC, is the lessee of ground and basement floor premises ("the Premises" or "the Gallery") situate at 14 to 15 Carlos Place in the heart of Mayfair in London, which is situated just on the other side of the road from the famous Connaught Hotel. The Tenant occupies the Premises for the purpose of carrying on the business of a high class modem art gallery by the name "Timothy Taylor" under the terms of a Lease ("the Lease") dated 29 th January 2007, which was for a term of 20 years from that date and which, accordingly, has just under 11 years to run.
The Defendants, Mayfair House Corporation and Mayfair House Corporation CM Inc., represented by Ms. Katharine Holland Q.C., are respectively the head landlord and the immediate landlord in respect of the Lease. I shall refer to them together as "the Landlord". They are associated companies which are owned or controlled by a Mr. Pasha Prinja and a Mr. Theodore Anagnou and/or persons connected with them. The building, of which the Premises forms part ("the Building"), consists of five storeys which from first floor upwards comprise apartments.
The Landlord is and has been since 2013 engaged in substantial works of development essentially to virtually rebuild the interior of the Building from the first floor upwards so as to create a number of new apartments which it intends to let. The Tenant complains that this work has been, particularly by reason of the noise generated by the works and the wrapping of the whole building by scaffolding to accommodate the works, substantially interfering with its use and enjoyment of the Premises as an art gallery.
The Tenant recognises that the Landlord is entitled to carry out its works and accepts that some disruption to its use and enjoyment of its Premises is inevitable, but complains that the manner in which the work has been carried out and is threatened to be continued to be carried out in the future is unreasonable in that it pays no or scant regard to its rights under the Lease. Accordingly, the Tenant seeks damages for the breaches of its rights which have occurred in the past and declaratory and injunctive relief to regulate how the works should be carried out in the future.
The Landlord, for its part, contends that it has at all times carried out its works reasonably with due and proper regard to the rights of the Tenant under the Lease.
The Tenant also raises as discrete issues:-
(1) whether the scaffolding as erected is compliant with the Landlord's express entitlement under the Lease to erect scaffolding and, if it is not, whether the Landlord should be directed to dismantle it;
(2) whether the Landlord was entitled to enter the Premises for the purpose of opening up a part of the ceiling of the Gallery to enable the removal of a screed from the floor of the premises above. I say "was" because the Landlord has, it seems, now abandoned the intention to remove this screed and so it is contended before me that this issue is now entirely academic;
(3) whether the Landlord is entitled as part of its works to fill in a light well ("the Light Well") which adjoins the Premises at basement level and to construct a porter's lodge at the bottom of the Light Well.
The Landlord insists that all the construction work which its contractors have carried out on its behalf is compliant with the Tenant's rights under the Lease. It accepts, on the basis of authority to which I shall come, that its right to build under the Lease does not give it an untrammelled right so to do, but claims that it has not, through its contractors, carried out its works in any way unreasonably. It also contends that the Tenant has refused it access to the Premises not just for the screed works, but also for a number of other matters in respect of which it claims to be entitled to enter the Premises under the terms of the Lease. It, therefore, counterclaims for injunctive relief in this regard and for damages referable to past refusals by the Tenant to afford it access to the Premises for these purposes.
The Lease
The Lease was, as I have said, dated 29 th January 2007. It was granted pursuant to an agreement for lease which is dated 22 nd December 2006. Whilst there are other provisions of the Lease which I will consider in more detail when considering the particular issues to which those provisions relate, for present purposes the provisions of the Lease which are the most important are as follows
(a) "The Building" was defined as meaning 14 and 15 Carlos Place, London Wl, shown edged red on Plan 1 (Clause 1.3);
(b) "The Premises" were defined as the ground and basement floors of the Building, shown edged red on Plans 2 and 3 attached to the Lease (Clause 1.34.1). Plan 2 was a plan of the ground floor of the Premises. It showed a mezzanine floor as well, but this was removed as part of the works which the Tenant carried out on the Premises (see below) at the commencement of the letting;
(c) "The Initial Rent" for the Premises was £360,000 for the first three years of the term and then rising to £380,000 for the next two years and was thereafter subject to a rent review (Clause 1.9);
(d) By Clause 2 of the Lease, the Landlord let the Premises to the Tenant "excepting and reserving to the Landlord the rights specified in Schedule 1, Part 1" (Clause 2);
(e) The rights so reserved to the Landlord set out in that Schedule included the following:-
"1-1 Right of entry to Inspect
The right to enter, or in emergency to break into and enter, the Premises at any time during the Term at reasonable times and on reasonable notice except in emergency to inspect them, to take schedules or inventories of fixtures and other items to be yielded up at the end of the Term, and to exercise any of the rights granted to the Landlord elsewhere in this Lease…"
"1–3 Scaffolding
The right temporarily to erect scaffolding for any purpose connected with or related to the Building and Premises provided it does not materially adversely restrict access to or the use and enjoyment of the Premises AND the Landlord agrees to use all reasonable endeavours to mi nimise the time for which scaffolding is erected on or in connection with the Building …"
"1–7 Right to erect new buildings
Full right and liberty at any time —
1–7.1 to alter, raise the height of, or rebuild the Building or any other building, and
1–7.2 to erect any new buildings of any height on any adjoining property of the Landlord in such manner as the Landlord thinks fit even if doing so may obstruct, affect, or interfere with the amenity of or access to the Premises or the passage of light and air to the Premises, and even if they materially affect the Premises or their use and enjoyment PROVIDED THAT if the Landlord increases the size of the Building then it will [as] soon as practicable vary this Lease by Deed to reduce the Tenant's service charge percentage."
(f) By Clause 4.1, the Landlord covenanted to:-
"… permit the Tenant peaceably and quietly to hold and enjoy the Premises without any interruption or disturbance from or by the Landlord or any person claiming under or in trust for him or by title paramount."
The principal issue in this action is the interrelationship between the covenant for quiet enjoyment in the Lease and the Landlord's right to build reserved to it by paragraph 1–7 of Part 1 of Schedule 1 to the Lease.
The Law
There is little, if any, dispute between the parties as to the applicable law. Until 2003 there was little authority on the interrelation between a landlord's right to build and the tenant's entitlement to enjoy the premises undisturbed pursuant to the covenant for quiet enjoyment. That may be because until the decision of the House of Lords in Southwark London Borough Council v Tanner [2001] 1 AC 1 a covenant for quiet enjoyment was generally regarded as being no more than a covenant for good title by the landlord, entitling the tenant to complain of breach thereof only if, as a result of a claim by a person with a title superior to that of the landlord, it was deprived of its use and enjoyment of the whole or a part of the demised premises altogether.
In the Southwark case the tenants who lived in a block of flats sued the landlord for breach of its covenant of quiet enjoyment by reason of excessive noise coming from an adjoining flat. Prior to that case, the general view was that a tenant could not sue for breach of the covenant of quiet enjoyment merely by reason of his use and enjoyment of the demised premises being substantially interfered with by activities carried out by the landlord or persons authorised by the landlord in adjoining premises; his only cause of action in such circumstances was to sue in the tort of nuisance.
This was the view taken by the Court of Appeal in the Southwark case, but the House of...
To continue reading
Request your trial
-
The Honourable Ivor Edward Other Windsor-Clive, Earl of Plymouth v Jenkin Thomas Rees
...of the landlord. I think that, although there is some tension in the cases, they permit of a consistent explanation. 50 In Timothy Taylor Ltd v Mayfair House Corpn [2016] 4 WLR 100, in a passage on which Mr Jourdan especially relies, the deputy judge, Mr Alan Steinfeld QC, said at [114]: “R......
-
Blue Manchester Ltd v North West Ground Rents Ltd
...tenant caused during the works. See Goldmile Properties Ltd v Lechouritis [2003] 2 P&CR 1 and Timothy Taylor Ltd v Mayfair House Corp [2016] 4 WLR 100.” 116 By way of brief chronology of events relevant to the hoardings issue, when in June 2014 Carillion discovered that the glazing in one o......
-
Jafari v Tareem Ltd
...referred to the principles as found in the decision of Mr Alan Steinfeld QC in Timothy Taylor Ltd v Mayfair House Corporation & Anor [2016] EWHC 1075 (Ch) (“ Timothy Taylor”). In essence, he held that the question was whether the landlord had taken all reasonable steps to minimise disturba......
-
0824606 B.C. Ltd. v. Plain Jane Boutique Ltd., 2018 BCSC 1887
...added.] [120] The England and Wales High Court Chancery Division, in Timothy Taylor Ltd. v. Mayfair House Corporation & ANR, [2016] EWHC 1075 (Ch) (10 May 2016) adds this to the Goldmile and Century Projects [24] I deduce from these authorities the following propositions, most of which ......
-
Living The Quiet Life: Landlord Works And Whether A Tenant Can Object
...English case,Timothy Taylor Ltd v Mayfair House Corporation & Anr [2016] EWHC 1075 (Ch) gives guidance on landlord works and how these can be reconciled with a landlord's obligation to respect the quiet enjoyment entitlement of its Whilst not binding on the Royal Court in Jersey, the de......
-
Development – the clash of covenants
...recent High Court decision in Timothy Taylor Ltd v. Mayfair House Corporation and another [2016] EWHC 1075 (Ch) illustrates a point made in our recent article "Upward development – the extra layer", that landlords undertaking works to a let building need to carefully consider the interplay ......
-
Development And Quiet Enjoyment: A Fine Balance
...it is therefore not surprising that the High Court recently found in Timothy Taylor Ltd v Mayfair House Corporation & Another [2016] EWHC 1075 (Ch) that this principle extends to development works carried out around an existing tenant. What is more surprising is that the Court ordered a......
-
Landlord And Tenant Disputes
...money and high society always pique press interest. Timothy Taylor Ltd v Mayfair House Corporation and another [2016] EWHC 1075 (Ch) has been covered in the Daily Telegraph as well as legal The tenant (or, as the Telegraph described him, the 52-year-old husband of the Duke of Kent's daughte......