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Leasehold Covenants - covenant to provide free horse riding lessons

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    Anne, in 1994 grants a 25-year lease, with rent payable monthly, of the barn to Bert and Bert covenants to provide Anne’s daughter Xena with free weekly riding lessons. Anne reserves a right of entry. In 1997, Bert gives up the horse business and assigns the lease to Carl, an interior designer, who, behind Anne’s back, begins to convert the barn into flats. Anne forfeits Carl's lease for breaching the covenant not to use the barn as a dwelling, but still Xena wants horse riding lessons.

    (1) I am confused about the horse riding lessons - it's a leasehold covenant, but is it enforceable? I have not read any authority stating that leasehold covenants for recreation are not allowed? From the facts, it seems that the leasehold covenant to provide horse riding lessons would pass on assignment to Carl (under the old pre-1996 law, given the lease was granted in 1994)? But something tells me that the covenant can't be enforced?

    If it is enforceable, assuming that Anne is entitled to forfeit Carl's lease, would Bert therefore be contractually liable to provide Xena's horse riding lessons, under the old pre-1996 law where contractual liable continued throughout the duration of the lease notwithstanding assignment? That seems like a ridiculous outcome.


    (2) A second question, sorry - if a landlord has waived her right to forfeiture of a lease for a breach of tenant's covenants, can the landlord still have access to other remedies like common law damages, specific performance or distress (for commercial leases)? Is your starting point for remedies in leases cases always forfeiture, and if forfeiture is not possible move onto other remedies?
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    From the facts, it seems that the leasehold covenant to provide horse riding lessons would pass on assignment to Carl (under the old pre-1996 law, given the lease was granted in 1994
    Hi,
    What are the conditions for an an assignment of pre-1996 leasehold covenants (Speencer's case)? In particular, do you think the covennat touches and concerns the land? What about Bert's position? Is he liable and if so, can he get an overriding lease (s. 19 LTA applies retrospectively)?


    2) A second question, sorry - if a landlord has waived her right to forfeiture of a lease for a breach of tenant's covenants, can the landlord still have access to other remedies like common law damages, specific performance or distress (for commercial leases)? Is your starting point for remedies in leases cases always forfeiture, and if forfeiture is not possible move onto other remedies?
    Well, that's rather a question about contract law but as far as I can remember -no. You basically accept the breach of contract by the other party.
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    (Original post by Qoph)
    Hi,
    What are the conditions for an an assignment of pre-1996 leasehold covenants (Speencer's case)? In particular, do you think the covennat touches and concerns the land? What about Bert's position? Is he liable and if so, can he get an overriding lease (s. 19 LTA applies retrospectively)?
    Spencer's Case fills in the missing gap of Section 141 LPA - that the burden of TO's covenants also pass on assignment; so TA can be sued by LA or LO. i.e. Anne can sue Carl if he refuses to provide the weekly horse riding lessons.
    But under the old 1996 law, the covenant must touch and concern the land - so perhaps you could argue here that the horse riding lessons do not touch and concern the leased land (the barn) so unenforceable as a leasehold covenant.

    What would you say about Bert's position? If we have established the covenant does not touch and concern the land, neither Carl nor Bert will be bound by the covenant to provide free weekly horse riding lessons. Any sorry, I am not sure why Section 19 would be relevant here to affect Bert, if you could explain that would be helpful.
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    (Original post by suffocation1992)
    Spencer's Case fills in the missing gap of Section 141 LPA - that the burden of TO's covenants also pass on assignment; so TA can be sued by LA or LO. i.e. Anne can sue Carl if he refuses to provide the weekly horse riding lessons.
    But under the old 1996 law, the covenant must touch and concern the land - so perhaps you could argue here that the horse riding lessons do not touch and concern the leased land (the barn) so unenforceable as a leasehold covenant.

    What would you say about Bert's position? If we have established the covenant does not touch and concern the land, neither Carl nor Bert will be bound by the covenant to provide free weekly horse riding lessons. Any sorry, I am not sure why Section 19 would be relevant here to affect Bert, if you could explain that would be helpful.
    I find it hard to argue that a covenant to give free riding lesons to the daughter touches and concerns the land. But if you want to argue that way, then Bert and Carl are liable for breach of covenant. If Bert is sued, he can get an overrding lease against Carl and end it. Remember that s. 19 works retrospectively.

    If you however think that the covenant does not touch and concern the land, then Carl drops out of the picture. But Bert remains liable. Even if it is personal in its nature, it is still a contract between him and the landlord. S. 5 LTA 1995 does not apply retrospectively
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    (Original post by Qoph)
    I find it hard to argue that a covenant to give free riding lesons to the daughter touches and concerns the land. But if you want to argue that way, then Bert and Carl are liable for breach of covenant. If Bert is sued, he can get an overrding lease against Carl and end it. Remember that s. 19 works retrospectively.

    If you however think that the covenant does not touch and concern the land, then Carl drops out of the picture. But Bert remains liable. Even if it is personal in its nature, it is still a contract between him and the landlord. S. 5 LTA 1995 does not apply retrospectively
    I talked to my tutor about the covenant for doing the horse riding lessons. The tutor's answer was that the point is the covenant is purely personal; personal covenants don't pass on assignment (s.3(6) if we're using the post-1995 law). That seems to also make sense. What do you think?
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    (Original post by suffocation1992)
    I talked to my tutor about the covenant for doing the horse riding lessons. The tutor's answer was that the point is the covenant is purely personal; personal covenants don't pass on assignment (s.3(6) if we're using the post-1995 law). That seems to also make sense. What do you think?
    Well, that's what I said.
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    (Original post by Qoph)
    Well, that's what I said.
    If it's purely personal, and post-1995 law, it won't pass. If it's purely personal and using the pre-1996 law, it won't pass to Carl but Bert will remain contractually liable. Got it, thanks!

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Updated: April 17, 2012
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