Landlord and tenant

Landlord covenanting personally to remedy building works defects- landlord assigning reversion and serving notice seeking release from landlord covenants - wholly personal covenant not capable of releaseBHP Petroleum Great Britain Ltd v Chesterfield Properties Ltd and Another: ChD (Lightman J): 27 February 2001Under the terms of an agreement for a lease in April 1997 the landlord personally covenanted to carry out remedial works in relation to any 'building works defects' as defined.

In July 1999 the first defendant transferred its reversion to the second defendant, an associated company, and served a notice on the claimant pursuant to section 8 of the Landlord and Tenant (Covenants) Act 1995 seeking a release from its obligations.

No counter-notice was served by the claimant.

Between September 1999 and April 2000 some of the glass cladding on the exterior of the demised premises fractured and fell out of its fixings.

The claimant sought a declaration that the first defendant remained liable to remedy the alleged building works defects and applied for summary judgment.

Michael Barnes QC and Joanne Wicks (instructed by Herbert Smith) for the claimant; Simon Berry QC and Andrew Walker (instructed by Dechert) for the defendants.Held, dismissing the claimant's application, that a landlord's (or tenant's) release from a covenant was intended to be sequential upon that party parting with his interest in the property and his successor assuming responsibility for honouring that covenant; that while the absence of any reference to the collateral agreement in the form of notice might be misleading to a tenant unfamiliar with the 1995 Act, the covenant came within the ambit of the 1995 Act because it was a covenant in a collateral agreement; that in considering whether the covenant fell to be complied with by the person for the time being entitled to the reversion of the demised premises, the court had to focus on the words 'for the time being'; that the covenant fell to be complied with by the person who was from time to time entitled to the reversion; that only covenants capable of subsisting as transmissible covenants could constitute landlord covenants under the 1995 Act; that sections 3(6) and 15(5) of the 1995 Act did not in any way elevate personal into landlord (or tenant) covenants, and that the landlord's notice would have achieved the release sought had the relevant obligation not been personal; but that the scope of the relevant covenant did not oblige the first defendant to remedy the alleged defect.