Courtney Lodge Management Ltd. v Blake

A tenant may breach a covenant not to suffer a nuisance without having a legal power to prevent it. It is sufficient that the tenant has influence which, on the balance of probabilities, would have ended the nuisance, but fails to exert it. A notice under Law of Property Act 1925, section 146(1)(a), need only specify the particular breach and its circumstances; it need not prescribe the remedy. Where the breach is remediable, the tenant must receive a reasonable time to remedy it before forfeiture proceedings are commenced. A period of only four working days after receipt of the notice was insufficient on the facts.

Courtney Lodge Management Ltd. sought forfeiture of the lease of Flat 322 from Andrew Blake, alleging that he had suffered continuing nuisance caused by occupants installed through an underlease. The Bow County Court found a breach of the nuisance covenant but granted relief from forfeiture subject to payment of the claimant’s and Atlantic Lodge (London) Ltd.’s costs.

Mr Blake appealed, challenging the finding of sufferance, the adequacy of the notice under section 146 of the Law of Property Act 1925, the time allowed to remedy the breach, and the order concerning Atlantic Lodge’s costs. The central issue was whether forfeiture proceedings were premature because a reasonable time to remedy a remediable breach had not elapsed.

1. Appeal allowed. The Vice-Chancellor gave the principal judgment, with Chadwick LJ and Sedley LJ agreeing. The Recorder’s order was set aside because Mr Blake was not afforded the reasonable time required by section 146(1) of the Law of Property Act 1925.
2. A covenant not to suffer a nuisance is not confined to cases where the covenantor has a legal power to prevent the nuisance. A failure to exercise such a power is sufficient, but a person who has no such power may still suffer the nuisance where he has influence which, on the balance of probabilities, would have brought it to an end and he fails to exert that influence. On the facts, the Recorder was entitled to find sufferance from Mr Blake’s inaction after he knew of the nuisance. The email sent by Atlantic Lodge’s director did not establish that it was prompted by Mr Blake.
3. The section 146 notice complied with section 146(1)(a). It identified the nuisance incidents and alleged that Mr Blake had suffered them. The remedy was for him to determine; requiring the landlord to specify how the breach should be remedied would impose an unwarranted burden.
4. The court proceeded on the accepted footing that the breach was remediable. Allowing time to obtain advice, at most four working days had elapsed after receipt of the notice before Mr Blake wrote on 8 September. Describing that period as excessive was plainly wrong. Proceedings commenced before the reasonable period had expired were premature. The court did not decide the alternative arguments concerning the effect of the deficient sublease, the possible non-remediability of earlier breaches, or whether later correspondence showed that the breach continued.
5. The costs issues concerning Atlantic Lodge did not arise after the appeal was allowed. The appellant’s costs and Atlantic Lodge’s costs were ordered to be paid by the first respondent, in each case up to 75 per cent, subject to detailed assessment.

• Court of Appeal (Civil Division): appeal from the Bow County Court order of Mr Recorder Hooper QC dated 26 February 2004. The order had granted relief from forfeiture on condition that Mr Blake pay the claimant’s and Atlantic Lodge’s costs. The appeal was allowed and the order was set aside.