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Nicholas Taggart

Nicholas Taggart

YEAR OF CALL 1991NTaggart@landmarkchambers.co.uk

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Landlord & Tenant Law

There are very few aspects of commercial landlord and tenant law that Nic does not undertake (he finds the countryside faintly disturbing, so he does not undertake any agricultural tenancies work). Other than that, he does it all, including “first refusal” cases under the Landlord and Tenant Act 1987.  He is particularly experienced in work which requires a good understanding of valuation, such as rent review, dilapidations and lease renewals. 

Nic knows his limitations (or at least some of them) and no longer undertakes any leasehold enfranchisement, right to manage or residential service charge cases.

Interesting cases include:

  • K/S Victoria Street v. House of Fraser (Stores Management) Ltd. [2012] Ch 497 (CA) - guarantees under the Landlord and Tenant (Covenants) Act 1995.  This is the leading case on the validity of guarantees under the 1995 Act, establishing that any person who had guaranteed a tenant’s obligations under a lease could not be contractually required to give a further guarantee in respect of an assignee of the lease. Such a requirement would “frustrate the operation of” the Act and was, therefore void, whether it be contained in the tenancy itself or even in a subsequent transaction and even if both parties might have freely and willingly entered into the transaction. Nic acted for the successful guarantor.
  • British Telecommunications plc v. Rail Safety and Standards Board Ltd. [2012] L&TR 35 (CA) - agreements for lease; specific performance.  An agreement for the grant of a sublease was made conditional upon the superior landlord’s consent being granted.  The agreement contained in an annex a form of deed to be executed by the superior landlord, mesne landlord and subtenant.  Relying on a long-stop date provision, the proposed subtenant rescinded the agreement at a time when all the parties had executed the deed in escrow, but the deed had not been completed.  The Court of Appeal held that, on the true construction of the agreement, the parties had stipulated that the superior landlord’s consent could only be validly given in one way, thereby avoiding the difficulties caused by informal consents, and that the proposed sub-tenant was accordingly entitled to rely on the long-stop provision.  Nic acted for the successful proposed subtenant.

  • Windsor Life Assurance Co. Ltd. v. Lloyds TSB Bank plc [2009] 3 EGLR 53 (HH Judge Peter Cowell, CLCC) - Landlord and Tenant Act 1954, section 29(5). The Court gave guidance on the procedure by which the tenant must notify the Court that it does not wish to be granted a new tenancy, following the landlord’s application to court.  The Court found that the claim was terminated even where the tenant not made a formal application but just written a letter and that the Court had made no order on receipt of the letter. 
  • Shirayama Shokusan Co.Ltd. v. Danovo Ltd. (Nº.4) [2005] EWHC 2589 (Ch); [2005] 44 EG 134 (CS) (Sir Donald Rattee, sitting as a Judge of the High Court) – forfeiture and relief. The case concerned the “Saatchi Gallery” when it was located at the former County Hall. Having dealt with various arguments relating to the proper construction of the lease, estoppel and misrepresentation, the Court set out the circumstances in which the tenant’s conduct, including its willful and deliberate breach of covenant and its conduct of the litigation itself, would disentitle it from obtaining relief from forfeiture. The Court also had to consider whether a tenant’s failure to make a proper response to the service of a section 146 notice shortened what might otherwise be the “reasonable time” for compliance with such a notice. 

  • Fairgate International Ltd. v. Citibank International plc [2006] 1 P&CR 2; [2005] 2 EGLR 48 (CA) – dilapidations. The Court of Appeal had to consider the interaction between covenants to repair and reinstate demised premises at the end of a lease and an unusual obligation on the tenant to carry out significant works of improvement at the end of the term, at the landlord's request. The tenant argued that the obligations were mutually inconsistent, and therefore it had no obligation to undertake any work. The Court held that the “reasonably practical building surveyor” would assess the competing obligations and devise a programme of works that made sense overall of the obligations. 

  • Hemingway Realty Ltd. v. Master, Wardens and Commonalty of Freemen of the Art or Mystery of Clothworkers [2005] L&TR 21; [2005] 2 EGLR 36 (Patten J) - rent review. In this case, the a lease provided in clear terms for the right to implement the rent review was exercisable by the landlord alone. The tenant argued that the absence of an “upwards only” review formula was meant that the Court should construe the clause as either requiring the landlord to implement the mandatory review, or be subject to an implied term that the right to implement a review was exercisable by both landlord and tenant. The tenant’s arguments were rejected, as the lease was clear and unambiguous. 

  • Shirayama Shokusan Co.Ltd. v. Danovo Ltd. (Nº.3) [2004] EWHC 2288 (Ch); [2005] L&TR 15 (Blackburne J) – unreasonable withholding of consent. By a lease the tenant was entitled, subject to the prior written consent of the landlords not to be unreasonably withheld or delayed, to erect signage on the common parts. The landlords gave consent on terms that the right granted would be determinable on 28 days' notice. In proceedings for an interim injunction to restrain the landlords from removing the signage following the termination of the licence, the tenant established at least an arguable case that a term that the landlords’ right of termination was only exercisable for good reason and that there was no sufficiently good reason shown. 

  • Shirayama Shokusan Co.Ltd. v. Danovo Ltd. (Nº.1 & Nº.2) [2004] 1 WLR 2985 (Blackburne J) – alternative dispute resolution and access to justice under the Human Rights Act 1998, Article 6(1). The Court concluded that it could not compel a non-party to attend a mediation; nor could it adjourn a case for a prolonged period of time in order to pressurise an unwilling party to attend a mediation.

  • PW & Co. v. Milton Gate Investments Ltd. [2004] Ch 142; [2004] 3 EGLR 103 (Neuberger J) – break clauses and rights of third parties; estoppel by convention. The landlord and tenant of a substantial City of London office building agreed that the tenant could break the lease, but would have to pay a premium of some £6m if the premises were not substantially sub-let. The tenant exercised the right when the premises were fully sub-let. The Court held that, as a matter of law, the sub-leases terminated immediately when the superior lease from which they were carved was terminated by a break clause. However, in equity, an estoppel by convention could prevent the parties, including the sub-tenants- from asserting that the sub-leases would determine. On the facts, however, it was just and equitable to release the sub-tenants from the common convention. Consequentially, the landlord and tenant were also released and the tenant had to pay the £6m.

  • Pubmaster Ltd. v. Gibb [2002] EWHC (Ch 142); (Rimer J) – forfeiture and relief from forfeiture. The Court had to consider whether the principles of issue estoppel would prevent a tenant who had previously consented to an order for relief from forfeiture which had subsequently not been complied with could subsequently argue that the forfeiture was unlawful. The Court concluded it would be an abuse of process to allow the tenant to reopen the proceedings. 

  • Tomkins v. Basildon District Council [2003] L&TR 7; [2002] 3 EGLR 33 (CA) – variations in tenancy terms and surrender by operation of law. The Court of Appeal concluded that a business tenancy had not become a residential tenancy (thereby moving the obligation to repair from the tenant to the landlord by reason of the Landlord and Tenant Act 1985, section 11) simply because the landlord had turned a blind eye to the cessation of business use at premises where the tenant also resided, or even when the landlord paid housing benefit to the tenant in respect thereof. 

  • Shirayama Shokusan Co.Ltd. v. Oceanic Village Ltd. (Nº.2) [2001] L&TR 35; [2001] 7 EG 162 (CS) (Nicholas Warren QC, sitting as a Deputy Judge of the Chancery Division) – derogation from grant; restrictive covenants. The landlords granted the tenant an exclusive right to sell merchandise relating to the “London Aquarium” within the former County Hall building. The Court found that, as a matter of construction, this also prevented the landlords from itself opening a competing business on other land owned by it immediately adjacent to the building. 

  • Commercial Union Life Assurance Co.Ltd. v. Label Ink Ltd. [2001] L&TR 29 (HH Judge Rich QC, sitting as a Deputy High Court Judge) – conditional break clauses, meaning of “material breach of the covenants”. The tenant’s right to break a lease was contingent on it not having made any material breach of covenant. The Court rejected the landlord’s arguments based upon breaches of the repairing covenants as not being “material”. However, it found that the tenant had failed to comply with the covenant to pay rent on time, by sending a post-dated cheque through the post, which arrived after the due date, notwithstanding the provisions of the Bills of Exchange Act 1982. 

  • Havant International Holdings Ltd. v. Lionsgate (H) Investment Ltd. [2000] L&TR 297 (Hart J) – break notices and agency. In this case, the tenant incorrectly identified itself on a break notice, which was signed by a person who was not an officer of the correct tenant company. Hart J held that the reasonable recipient of the notice would not be confused as to the identity of the tenant, as the break right was personal to the “correct” tenant. The reasonable recipient would also readily infer that the signatory was an agent of the “correct” tenant. The lease was, accordingly, determined. 

  • Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [2000] Ch 12; [1999] 2 EGLR 23 (CA) – break notices Distress for Rent Act 1737, section 18. The tenant served a break notice which the landlord was entitled to treat as defective. The tenant stayed in occupation until the law was changed by the decision in Mannai Investments. Following that decision, the landlord accepted the lease was at an end, but amended its claim to include a claim for trespass damages based on double rent under the 1737 Act. The Court of Appeal rejected the tenant’s argument that the landlord had elected between inconsistent remedies and so could not seek double rent, but held that the landlord was not entitled to double rent because the Act required the landlord to have treated the tenant as a trespasser throughout. 

  • Shirayama Shokusan Co.Ltd v. Oceanic Village Ltd. (Nº.1) [1999] EGCS 83 (Neuberger J) – rectification. The Court reiterated that a claim for rectification needed to be proved with “strong, irrefragable evidence” and that the Court would not usually rectify an agreement simply because one party had been tough and successful in negotiations, and the other had been had missed a point or had failed to appreciate the likely effect of the agreement. 

  • Mattey Securities Ltd. v. Ervin (1998) 77 P&CR 160; [1998] 2 EGLR 66 (CA) – implied tenancies and surrender by operation of law. The original tenant assigned a lease to a successor who fell into financial difficulties. The successor’s guarantor paid the rent whilst personally trading from the premises. The original tenant subsequently argued that the acceptance of rent in such circumstances amounted to a grant of a periodic tenancy to the guarantor and therefore surrendered the lease. The Court rejected this, emphasising that the relationship of landlord and tenant had to be created consensually and that there was no unambiguous evidence of a new tenancy being created. On the contrary, the evidence showed that the landlord, successor and guarantor were all treating the lease as extant.