Real Estate Quarterly Summer 2014
Case round up
Eleanor Marsh and Paul Tonkin summarise recent
Singh v Dhanji  EWCA Civ 414
Landlord in breach of statutory duty
to consent to assignment
Mr Singh was a dentist and the owner of two adjoining
properties at 1A and 3 Talbot Street, Nottingham.
In 2000 he sold his practice and let 3 Talbot Street
to another dentist, Mrs Dhanji, under a 15 year lease.
In 2006, Mr Singh discovered that the rent due had
not been paid for over a year as he had closed the
account into which Mrs Dhanji had been paying the
rent. Mr Singh proceeded to re-enter the premises
by way of an opening at attic level, change the locks
and disconnect the electricity supply.
During this visit, Mr Singh noticed that the premises
had been extensively refurbished by Mrs Dhanji.
Mr Singh had not been informed of the works.
Mrs Dhanji sought and obtained an injunction against
Mr Singh and successfully applied for relief from
forfeiture. In 2007, Mrs Dhanji applied for consent to
assign the lease. Mr Singh refused on the ground that
Mrs Dhanji had breached her obligations under the
lease by carrying out the works and said that consent
would only be granted if the breaches were remedied.
Mrs Dhanji denied the breaches of covenant arguing
that, even if the breaches were genuine, they were
of such a minor nature that they would not adversely
affect the value of Mr Singh’s reversion. Mrs Dhanji
brought a claim for a declaration that she was entitled
to damages for unreasonable refusal of the consent
The judge at first instance agreed with Mrs Dhanji.
The allegation of breach was not proved and in any
event the alleged breaches were not serious enough to
justify the imposition of the condition that they should
be remedied before assignment. This condition was
unreasonable and Mr Singh had therefore breached his
duty to consent to the assignment under the Landlord
and Tenant Act 1988.
Mr Singh appealed. The Court of Appeal dismissed
the appeal. The onus was on the landlord to show that
conditions imposed on a consent to assignment were
reasonable. This did not mean that the conditions had 16 Real Estate Quarterly Summer 2014
to be objectively right or justifiable. However, Mr Singh
was required to show that when Mrs Dhanji sought the
assignment, he had reasonable grounds to suppose
that she was in breach of the lease covenants and
those breaches were so serious or grave that they
amounted to a valid reason for refusing assignment due
to their adverse impact on the value of the reversion.
Mr Singh had failed to do this.
Horne and Meredith Properties Limited v
Cox and Billingsley  EWCA Civ 423
Landlord entitled to object to lease renewal
where tenant had maintained sixteen year
Mr Cox and Miss Billingsley were Horne’s tenants of
7A Whitburn Street, Bridgnorth, from which they ran
an upmarket women’s clothing shop. They occupied
the property under a lease granted in 1981 which was
When the lease came up for renewal again under the
Landlord and Tenant Act 1954, Horne opposed the
renewal under ground (f) (redevelopment) and ground
(c), namely that “the tenant ought not to be granted
a new tenancy in view of other substantial breaches
by him of his obligations under the tenancy or for any
other reason connected with the use or management
of the holding.”
The tenants’“holding” for the purposes of the 1954 Act
consisted not just of the shop but a number of rights
of way and rights to park. For a period of 16 years or
more, the parties had been in frequent litigation over
alleged obstructions of these rights. Mr Cox and Miss
Billingsley had initiated no fewer than ten separate sets
of proceedings against Horne during this time resulting
in substantial legal bills for all parties.
The judge at first instance held that ground (f) had
not been made out, but that ground (c) had been
established and ordered that the tenancy be terminated
on 1 May 2013. The judge found that Horne had been
subjected to a remorseless campaign at the hands of
Mr Cox and Miss Billingsley who had often alleged
“spurious or exaggerated” legal infringements and had
made “wholly baseless allegations” against Horne.
It was clear that relations between the parties had
irretrievably broken down and it was not fair to compel
Horne to re-enter into legal relations with Mr Cox and
Miss Billingsley having regard to their past behaviour.
Mr Cox and Miss Billingsley appealed, arguing that
the reasons relied on by the judge at first instance
were not “connected with the use or management
of the holding” under the second limb of ground (c).
The appeal was dismissed. In order to fall within the
second limb, the reasons did not need to be directly
concerned with the relationship between the parties
as landlord and tenant and the limb was broad enough
to enable the court to look at everything it regarded
as relevant in connection with the tenant’s use and
management of the holding. Litigation between
landlord and tenant would not always lead to a refusal
of a new tenancy but it was a fair result in light of the
Coventry (t/a RDC Promotions) v Lawrence 
Noise from speedway track constituted nuisance
Since 1976 a speedway track had been operated by
Mr Coventry and his predecessors from a site in Suffolk.
The current use secured planning consent in 1997.
In 2006 the Lawrences purchased a bungalow about
800m from the track. The Lawrences complained
about the noise from the track and brought a claim
The judge at first instance upheld their claim granting
an injunction to limit the noise levels. The judge found
that Mr Coventry had not acquired a right by long user
to create the noise nuisance.
Mr Coventry appealed on a number of grounds.
The appeal was upheld by the Court of Appeal who
found that the trial judge had failed to take adequate
account of the fact that the use had been continuing
with planning permission for a number of years. There
was no nuisance.
The Lawrences appealed. The Supreme Court
allowed the appeal. Whilst it is possible to acquire a
prescriptive right to commit a nuisance (including noise
nuisance) Mr Coventry had not done so in the current
circumstances. It was no defence, as Mr Coventry
had tried to argue, that the Lawrences had “come to
the nuisance” (i.e. had bought the bungalow after the
nuisance had started. The actual use of Mr Coventry’s Real Estate Quarterly Summer 2014 17
land was to be taken into account when considering
the character of the locality (a typical consideration
when assessing whether a certain activity constitutes
a nuisance) but only to the extent that it did not
constitute a nuisance.
The Court further noted that it was wrong to argue
in principle that by granting planning permission
a planning authority should be able to deprive a
landowner of a right to object to what would otherwise
be a nuisance without providing him with compensation
(there was no provision in the planning legislation
for such a possibility). The existence of the planning
permission could however be relevant to whether
an injunction, or just damages, should be granted.
The Court reiterated that an injunction for breach of
property rights, including nuisance, was a discretionary
remedy and the courts should exercise that discretion
in a flexible manner.
L Batley Pet Products Ltd v North Lanarkshire
Council  UKSC 27 (Scottish case)
Obligation to keep and put premises in repair did
not require notice from the landlord to activate it
Batley was the leasehold owner of Wardpark
South Industrial Estate in Cumbernauld, Scotland
and the Council was the tenant of Units 1 and 3
under a 25 year lease.
Under the terms of the lease, the Council had
covenanted “at all times… well and substantially to
repair, maintain and where necessary to renew, rebuild
and reinstate and generally in all respects keep in good
and tenantable condition the Premises...”.
In addition to the lease, the parties had also entered
into a side agreement by which the Council could
make alterations to the premises, but was obliged
to dismantle and remove the works at the end of the
term “if so required” by the landlord.
Batley argued that the Council had breached its
repairing covenants by failing to remove alterations at
the end of the term after giving oral notification that
this was required. It claimed that under the agreement,
the Council should have removed the alterations and
repaired the premises (claiming £253,766.44 on this
basis). Alternatively, it relied on the repairing obligations
under the lease to claim £189,692.30 resulting from
dilapidations at the time of the lease expiry.
The Council argued that (i) under the repairing
obligation, Batley was required to give written
notification that it required the Council to carry out the
repairs, and (ii) under the side agreement, Batley was
obliged to give written, rather than oral, notification
that it required the Council to remove the alterations.
The Scottish court decided both issues in favour of
Batley appealed to the Supreme Court who disagreed
and allowed the appeal. The repairing obligation under
the lease requiring the Council to put and keep the
premises in good condition was an ongoing obligation
and did not require any notice from Batley to activate it.
Further, there was no requirement in the side
agreement to provide written notice and oral notice
was sufficient. Despite the fact that the lease itself
required notices to be in writing, the agreement was
a separate contract and should be interpreted as such.
Further, in other parts of the side agreement, certain
notices were specifically required to be in writing,
whereas the reinstatement provision was silent on the
form of communication. This indicated that the parties
intended that a more informal method could be used.
G&O Investments Ltd v Khan  UKUT 96 (LC)
Service charge demands validly served by second
G&O was the landlord of Flat 1, 75 Parrock Street,
Gravesend, Kent which was occupied by Naznin Khan
under a 1987 lease.
A dispute arose between the parties as to unpaid
service charge sums alleged to be due and owing
by Nanzin Khan.
For a number of years G&O sent service charge
demands by second-class post. The relevant provision
under the lease provided that any demands for
payment would “be well and sufficiently given if sent
by the Lessor…through the post by registered post or
recorded delivery letter”.
The Leasehold Valuation Tribunal held that the clause
could only mean that the demands sent by post
must be sent by registered or recorded delivery.
Consequently the service charge demands had not
been served in accordance with the strict terms of the
lease and the service charges were not properly due for
the relevant years. Real Estate Quarterly Summer 2014
G&O appealed, arguing that the provision in the
lease allowed it a choice as to whether to send the
documents by registered post or not. G&O argued that
this was clarified by the separate deeming provision
contained in the same clause.
The Upper Tribunal allowed the appeal concluding
that the clause was permissive rather than mandatory.
It made clear that sending demands by registered or
recorded post would be sufficient service but this did
not prevent the landlord from using other methods of
service for demands for payment. The service charge
demands had therefore been validly served and the
service charge sums were properly due.
Arlington Business Parks GP Limited v Scottish
& Newcastle Limited  CSOH 77 (Scottish case)
Tenant required to be in compliance with repairing
obligations at date break notice served and at
Arlington was the landlord of office premises at 1 and
2 Broadway Park, Edinburgh which were let under
separate leases to Scottish & Newcastle.
The leases expired in 2023 but could be broken on
7 May 2013 subject to 12 months’ notice and provided
that Scottish & Newcastle were not in breach of
“any of their obligations at the date of service of
such notice and/or the termination date”. Scottish &
Newcastle duly served notices under the two leases
and undertook £1.3 million of repairs to the premises to
ensure that they were in their proper condition as at the
A dispute arose between the parties as to the validity
of the notices. Arlington argued that the break clauses
required Scottish & Newcastle to have performed its
repairing obligations as at the date of service of the
break notice as well as at the break date. The premises
were in disrepair as at the date the notice was served
and therefore, they said, the break had not been validly
exercised. Scottish & Newcastle argued, amongst other
things, that it was only breaches which had not been
remedied as at the break date which would invalidate
the notice and also that “breach” was intended to
mean a material or irremediable breach.Real Estate Quarterly Summer 2014 19
The Scottish Court of Session found in favour of
Arlington. The natural construction of the break clause
was that a notice was invalid if Scottish & Newcastle
was in breach of its obligations under the leases at the
date of the break notice or the date of termination, or
both. Clear wording was required in the lease before
the break conditions would be construed in a more
restrictive way such that only material or irremediable
breaches would render the break ineffective.
Brightbest Limited v Meyrick (unreported)
Two derelict buildings converted into bedsits
and flats were not “houses” for the purposes
of enfranchisement legislation
Brightbest Limited was the leasehold occupier of
two derelict buildings which formed part of Meyrick’s
family estate in Bournemouth under a 99 year lease
dated 1928. The buildings comprised a “main building”
and a “cottage” (as described in the lease) known as
Ingleby and Ingleby Cottage. The former had been
constructed as a Victorian villa but converted to a
hostel for women of limited means in 1928. The latter,
originally a coachhouse, had been converted into two
flats with separate entrances and no common parts at
the same time.
In 2010 Brightbest served two notices under the
Leasehold Reform Act 1967, which confers the right
on the long lessee of a “house” to acquire the freehold
on favourable terms. Meyrick resisted the claim arguing
that the buildings were not “houses” for the purposes
of the Act.
The key issue which fell to be decided was whether
the buildings were “designed or adapted for living in”
and were each a “house reasonably so called” under
section 2(1) of the 1967 Act.
The County Court judge found in favour of Meyrick.
It was clear that the main building was initially designed
as a house but the alterations in 1928 to the women’s
hostel changed its character so that whilst it remained
a property for living in, it was not a house reasonably
so called. Furthermore, the cottage had never had the
character of a house. Whilst overall the cottage could
be a house, the two flats were not connected in any
way therefore the cottage could also not be a house for
the purposes of the Act. Consequently, Brightbest had
no right to acquire the freehold of either building.
Rashid v Sharif  EWCA Civ 377
Trespass committed by neighbour who demolished
party wall without consent and without complying
with the Party Wall etc. Act 1996
Mr Rashid and Mr Sharif were the owners of two
properties on parallel roads in Dudley whose back
gardens abutted each other.
Originally, a wooden fence ran along the boundary
line which was subsequently replaced by a brick wall
by Mr Rashid’s predecessor. Mr Rashid built a shed
up against the wall, leaving a small gap at the back to
enable him to maintain the rear of the shed. Mr Sharif
also decided to build a shed and demolished the brick
wall and built a new shed with the back placed along
the line of the old brick wall.
Mr Rashid brought proceedings for trespass. The judge
at first instance found that, by building the shed on the
original wall’s foundations, Mr Sharif had trespassed
on Mr Rashid’s land by 225mm (the width of the wall).
The court granted a mandatory injunction requiring
Mr Sharif to reinstate the brick wall and remove the
rear wall of the shed.
Mr Sharif appealed. The appeal was allowed in part.
The original wall was a party wall and had been built
partly on Mr Sharif’s land and partly on Mr Rashid’s
land. However, there had still been a trespass.
Mr Sharif had demolished a party wall and had built
a new one which formed part of the shed structure.
Mr Sharif had not been entitled to carry out such
substantial works without serving the appropriate
notices under the Party Wall etc. Act 1996 and
following the statutory procedures to secure the
rights to carry out the work. Consequently the works
constituted a trespass. However, the trespass was
also not as serious as the judge at first instance had
found and the mandatory injunction could not stand.
If the correct procedures had been followed, Mr Sharif
would in all likelihood have been entitled to build the
new wall in exactly the same position. The appropriate
remedy was therefore for damages of £300 in lieu of
an injunction. Eleanor Marsh
T +44 20 7296 5641
Senior Associate, London
T +44 20 7296 2456
20 Real Estate Quarterly Summer 2014
Best v Chief Land Registrar  EWHC
Criminal squatter entitled to acquire title to land
In 1997, the freehold owner of 35 Church Road,
Newbury Park passed away. Having worked nearby,
Mr Best heard about the then empty and vandalised
property and spent time at the property repairing and
re-decorating it over the ensuing years, finally moving
into the house in January 2012.
On 27 November 2012, Mr Best applied to the Land
Registry to register title to the property on the basis
that he had been in adverse possession for the period
of ten years ending on the date of the application (as
required by the Land Registration Act 2002). Following
a change in the law in 2012, squatting in a residential
property was, by that time, a criminal offence.
The Land Registry refused to accept Mr Best’s
application on the ground that he could not, in support
of his claim for adverse possession, rely upon any
period during which his occupation of the property
had been a criminal offence. Mr Best challenged the
decision by way of judicial review.
The question that fell to be decided by the court was
whether the criminalising of trespass by “living in”
residential buildings prevented time running for
applications for registration of title by adverse
possession. Mr Best argued that it had no effect
on the provisions of the 2002 Act.
The administrative court found that, whilst there was
a general and fundamental principle of public policy
that a person should not be entitled to take advantage
of his own criminal acts to create rights to which a
court should then give effect, this principle was not an
absolute rule. Here, there was a countervailing public
interest in allowing a person who had long been in
undisputed possession to be able to deal with the land
as owner. There was a further public interest in not
leaving title uncertain in the face of long possession
to which there had been no adverse reaction, even if
there was no consent to the occupation.
The Land Registry’s decision was therefore quashed
and Mr Best’s application was permitted to proceed.