Implied waiver of a breach of covenant

A landlord waives a breach of covenant, and cannot forfeit a lease because of it, when (i) he knows of the breach, and (ii) with that knowledge he does some act that unequivocally recognises the continued existence of the lease, and (iii) that recognition is communicated to the tenant.

In Cornillie v Saha ((1996) 28 H.L.R. 561 CA (Eng)) a tenant had sub-let parts of a flat in breach of covenant. The landlord, knowing of the breaches, brought proceedings to require the tenant to allow the landlord to have access to the property. It then served the equivalent of a notice under section 58 of the Conveyancing and Property Ordinance and brought forfeiture proceedings. The English Court of Appeal decided that the bringing of the earlier proceedings (seeking access for inspection) amounted to a waiver of the breaches of covenant not to sub-let.  A landlord waives a breach of covenant, and cannot forfeit a lease because of it, when (i) he knows of the breach, and (ii) with that knowledge he does some act that unequivocally recognises the continued existence of the lease, and (iii) that recognition is communicated to the tenant.

One Response to “Implied waiver of a breach of covenant”

  1. Richard Says:

    But if the original landlord sells his reversion to a new landlord, will the new landlord be bound by the implied waiver (or estoppel) given by the original landlord to the tenant in breach?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: