LANDLORD AND TENANT

Landlord covenanting personally to remedy building works defects - landlord assigning reversion and serving notice seeking release - wholly personal covenant not 'landlord covenant' capable of releaseBHP Petroleum Great Britain Ltd v Chesterfield Properties Ltd and another: CA (Mr Justice Judge and Mr Justice Jonathan Parker and Mr Justice Bodey): 30 November 2001Under the terms of an agreement for a lease in 1997 the first defendant 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 tenant 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 tenant.

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.On the tenant's action to enforce the covenant Mr Justice Lightman [2001] Gazette, 12 April, 32; [2001] 3 WLR 277 declared that the first defendant remained liable to remedy the alleged building works defects.

The defendants appealed.Kim Lewison QC and Andrew Walker (instructed by Dechert) for the defendants.

Michael Barnes QC (instructed by Herbert Smith) for the claimant.Held, dismissing the appeal, that the definition of 'landlord' in section 28(1) of the 1995 Act as meaning 'the person for the time being entitled to the reversion expectant on the term of the tenancy' clearly connoted the person who might from time to time be entitled to the reversion on the tenancy; that it followed that a 'landlord covenant' was an obligation falling to be complied with by the person who might from time to time be entitled to the reversion on the tenancy; but that an obligation which was personal to the original landlord was, by definition, not such an obligation because it did not fall to be performed by the person who might from time to time be entitled to the reversion on the tenancy; and that, accordingly, the first defendant's obligation to remedy building defects was not a 'landlord covenant' within the meaning of the 1995 Act, and the notice given by the first defendant under section 8(1) of the Act was ineffective to release it from such obligations.