Q&As

A landlord who has a superior landlord is granting residential leases of flats. The lease between the landlord and his tenants includes a clause which states 'the Tenant covenants with the Superior Landlord and its successors in title in their own right to observe and perform...' The superior landlord is defined but is not a party to the lease. Will this covenant be enforceable or does the superior landlord need to be a party to the lease?

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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk
Published on LexisPSL on 25/11/2015

The following Property Q&A produced in partnership with Georgia Whiting of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A landlord who has a superior landlord is granting residential leases of flats. The lease between the landlord and his tenants includes a clause which states 'the Tenant covenants with the Superior Landlord and its successors in title in their own right to observe and perform...' The superior landlord is defined but is not a party to the lease. Will this covenant be enforceable or does the superior landlord need to be a party to the lease?

This answer considers the enforceability of covenants in circumstances where there is a superior landlord, an intermediate landlord, and a tenant.

The ordinary rule in relation to the enforceability of contractual provisions is that there needs to be privity of contract between the parties. Thus, at common law, only the parties to the contract can enforce its provisions against each other, even where a term in the contract is intended to benefit a third party. These provisions apply just as much in respect of provisions in a lease, because it amounts to a contract. Therefore, a head landlord is unable at common law to enforce provisions contained in a lease granted between an intermediate tenant and a sub-tenant unless they are a party to it. See our PSL Dispute Resolution Practice Note: Third party rights—the common law doctrine of privity of contract.

That privity is required in respect of the estate of the head landlord in order to enforce as against the sub-tenant was made clear by Neuberger (as he then was) in Amsprop Trading Ltd v Harris Distribution Ltd [1997] 2 All ER

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