Waiver of breach and resolving ambiguity in a lease by looking at the counterpart

In Matthews v Smallwood ([1910] 1 Ch. 777) a tenant granted a sub-lease in breach of a covenant against sub-letting. There was an ambiguity in the proviso for re-entry in the lease in that it allowed for re-entry in the event of a breach of  ‘the covenant’ therein contained. Was the right of re-entry only available for the breach of a single covenant in the lease and, if so, which one? This ambiguity, having arisen, could legitimately be resolved by looking at the counterpart which allowed for re-entry in the case of a breach of any of the ‘covenants’ contained in the lease.

There was also the question of whether there had been a waiver of the breach. There had not:

‘Waiver of a right of re-entry can only occur where the lessor with knowledge of the facts upon which his right to re-enter arises does some unequivocal act recognizing the continued existence of the lease.’ (786, per Parker J.)

The court refused to grant relief to the sub-lessee since it had been careless in failing to check on the terms of the head-lease concerning sub-letting.


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