There is no equitable lease unless specific performance of the agreement would be ordered

In Warmington v Miller ([1973] QB 877, CA (Eng)) M’s lease contained a covenant prohibiting him from assigning, underletting or parting with possession of part only of the demised premises. He entered into an agreement with W to grant W a tenancy of part of the demised premises but refused to execute the underlease. W sought specific performance.

This failed since specific performance would not be awarded ‘where the result would be a breach by the defendant of a contract with a third party or would compel the defendant to do that which he is not lawfully competent to do.’ (at 886 per Stamp LJ).

There was no equitable lease, the rule in Walsh v Lonsdale did not apply, unless the lessee was entitled to specific performance. (at 887 per Stamp LJ).

Michael Lower

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