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Subletting, sharing possession or occupation

This page deals with three issues
  • Was sharing of occupation a breach of the lease?
  • What did it mean to share possession or occupation?
  • A case in which the court, at the request of the head landlord, ordered an unlawful sub-tenant to give the property back to the tenant
See also the pages dealing with Consents and the Landlord and Tenant (Covenants) Act 1995 in this section of the site.

Sharing occupation - breach of covenant?

Mean Fiddler Holdings Ltd v Islington Borough Council
[2003] EWCA Civ 160

Question: Was there a sharing of occupation in breach of the lease?

The user clause provided that the tenant was not to use the property or any part of it "otherwise than as a licensed snooker and social club together with a restaurant discotheque and bar on the ground floor".

The alienation clause provided that the tenant was no to "share the possession of occupation of part only of the Property nor permit nor suffer any other person company or firm to occupy or share the occupation of the Property or any part of parts thereof whether as a licensee or otherwise".

T operated the venue by offering the club to external promoters who on their own account would stage club nights, taking full responsibility for admission revenues, advertising and administration burden. The promoters and artists were admitted one hour before the nightclub opened to prepare and set up. They were not provided with keys nor did they have access to any private parts of the club. The judge held that there was no breach of covenant and the Court of Appeal agreed.
    ".. this is one of those questions .. sometimes described as one of mixed fact and law, where there is no precise test... In my view, the starting point here was the nature of the permitted use, which involved such things as a social club, a discotheque and a restaurant... It involved the admission of the public ..[the judge] was entitled to treat the fact that the respondent in this case remained 'exclusively responsible for everything concerned with the property as opposed to the event' as being indicative of the fact that it had not shared occupation." (Carnwath LJ at paras 31-35)

    "This was a question of interpretation of a contract ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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