Q&As

In a commercial lease the tenant has covenanted not to ‘permit any contaminative substances to be on the Property’. It has been discovered that the former tenant deposited contaminative substances on the site. Is the new tenant in breach of covenant for not removing these substances?

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Produced in partnership with Alexander Campbell of Field Court Chambers
Published on LexisPSL on 14/04/2020

The following Property Disputes Q&A produced in partnership with Alexander Campbell of Field Court Chambers provides comprehensive and up to date legal information covering:

  • In a commercial lease the tenant has covenanted not to ‘permit any contaminative substances to be on the Property’. It has been discovered that the former tenant deposited contaminative substances on the site. Is the new tenant in breach of covenant for not removing these substances?

In a commercial lease the tenant has covenanted not to ‘permit any contaminative substances to be on the Property’. It has been discovered that the former tenant deposited contaminative substances on the site. Is the new tenant in breach of covenant for not removing these substances?

When deciding whether a tenant has breached a covenant concerning their use of the premises, a court will always look first and foremost at the wording of the particular covenant concerned.

Where a covenant is worded in absolute terms, the tenant will be in breach of it irrespective of whether or not they have actually permitted the breach. For example, if the covenant were worded to say that ‘there shall not be any contaminative substances on the Property’, then the tenant would be in clear breach of covenant simply by virtue of there being contaminative substances on the Property.

However, where a covenant provides that a tenant must not ‘permit’ something, the question arises as to what the word ‘permit’ means. In the case of Berton v Alliance Economic Investment Co, the Court of Appeal interpreted the word ‘permit’ in the context of a covenant against a tenant permitting something as follows:

‘To my mind the word "permit" means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain

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