Breach of covenant against sub-letting cannot be remedied: Scala House & District Property Co Ltd v Forbes

Leases often contain a prohibition against assignment or sub-letting. The covenant may be absolute (a complete prohibition) or qualified (not to assign or sub-let without the landlord’s consent). The English Court of Appeal decided in Scala House & District Property Co Ltd v Forbes ([1973] 3 WLR 14) that an unlawful sub-letting in breach of this covenant was incapable of remedy (and so the landlord’s notice under the English equivalent of CPO, s.58 need not give a reasonable time for the breach to be remedied). The reason advanced by the Court of Appeal was that the sub-lease had been created and that fact could not be altered even if the sub-lease were surrendered. The tenant did in fact take steps to put things right and the Court of Appeal granted relief from forfeiture.

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