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Van Haarlam v Kasner Charitable Trust (1992) 64 P. & C.R. 214

Property law – Landlord and tenant – Forfeiture

Facts

The plaintiff held a 99-year lease over a flat which had a subsequent covenant, preventing the flat from being used for illegal activity. He was later arrested and charged under the Official Secrets Act 1911 and Official Secrets Act 1920, section 7. He was charged and convicted on the basis that he possessed equipment which enabled him to receive secret communications. In the meantime, the defendant gathered advice on forfeiture which was incorrect, and proceeded to send out rent demands which were unpaid. He subsequently served notice to the plaintiff that he had broken the covenant in the lease, and this could not be remedied.

Issue

The court was required to define whether the landlord had a right to implement his right to forfeiture for the actions of the tenant. Specifically, it had to be proven that the criminal acts the tenant was charged with had taken place in the flat, and whether the landlord had waived the right to forfeiture for proceeding with the agreement when he had information as to the tenant’s activity.

Held

The court held that the criminal acts in question were carried out within the flat and therefore they amounted to a breach of the covenant. However, the court also found that a landlord who knew that a tenant was breaching the covenant and continued with the agreement, would be considered to waive the right to forfeiture. He knew in this case and therefore waived the right. The court also highlighted that even if this were not to be the case, the court would have granted relief to the tenant as the landlord would have received the flat with an 80-year lease which was a benefit that far outweighed the damage caused by the tenant.


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