This is an interesting question and one which I know many leaseholders wrestle with when dealing with their landlords. While I’m sure that there may well be leases out there allowing direct enforcement of covenants by leaseholders against other leaseholders I have yet to see one. This leaves leaseholders in a difficult position having to put up with the activities of the offending leaseholder while dealing with the latter is effectively left wholly in the hands of the freeholder/landlord.
In Dr Duval - v- 11-13 Randolph Crescent Limited [2018] EWCA Civ 2298, the Court of Appeal has considered the effect of a landlord waiving a lease covenant which it was obliged to enforce under Dr Duval’s (the aggrieved tenant) lease.
The Facts
The case concerned a house which had been converted into nine flats and let to tenants under identical long leases. The freeholder was a management company of which all the leaseholders were shareholders.
Each lease contained:
- A conditional clause:
“Not without the previous written consent of the Landlord to erect any structure pipe partition wire or post upon the Demised Premises nor make or suffer to be made any alteration or improvement in or addition to the Demised Premises.” (Clause 2.6)
- an absolute prohibition clause:
“Not to commit or permit or suffer any waste spoil or destruction in or upon the Demised Premises nor cut maim or injure or suffer to be cut maimed or injured any roof wall or ceiling within or enclosing the Demised Premises or any sewers drains pipes radiators ventilators wires and cables therein …” (Clause2.7)
- a covenant by the landlord that all leases would contain identical covenants and an obligation on the landlord to enforce a breach of covenant by one tenant at the request of any other tenant (subject to payment or provision of security of the Landlord’s costs) (