Partial v Fully qualified covenant

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    Partial v Fully qualified covenant

    I am looking to buy a flat I can there are two types of qualified covenants (aside from an absolute covenant) having down loaded a few from Land Reg


    • Partially qualified: e.g. covenants “not to use premises other than a
    restaurant without consent”, “not to make structural alterations without
    consent”, “not to underlet part of the premises without consent”;

    • Fully qualified: e.g. covenants “not to use premises other than a
    restaurant without consent, such consent not to be unreasonably
    withheld”, “not to make structural alterations without consent , such
    consent not to be unreasonably withheld”, “not to underlet part of the
    premises without consent, such consent not to be unreasonably
    withheld”

    So far so good.....but is there any general rule or trend as to which type of covenant was in vogue in leases written during the last 100 years?

    Is it fair to say that FULLY qualified covenants tend to have been only included in the last 50 years?

    Or it it entirely random ad hoc ie no general rule ?

    Thanks

    #2
    In practice, except in relation to agricultural tenancies, the distinction you make is of no practical application because in the case of covenants relating to alienation, improvements and user section 19 of the Landlord and Tenant Act 1927 applies. The section provides that where the covenant stipulates that the action is not to be done without consent, the consent is not to be unreasonably withheld or delayed.

    There is no general rule as to what you will find in any lease.

    Comment


      #3
      Thanks for this clarification.

      By implication if both fully and partially qualified covenants are caught by "improvements" provision and I wanted to make a structural alteration within the demise this would suggest that the landlord could not charge a premium (other than survey and any reasonable legal cost's)?

      Comment


        #4
        Correct. Here is chapter and verse (section 19(2) Landlord and Tenant Act 1927):

        In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the making of improvements without a licence or consent, such covenant condition or agreement shall be deemed, notwithstanding any express provision to the contrary, to be subject to a proviso that such licence or consent is not to be unreasonably withheld; but this proviso does not preclude the right to require as a condition of such licence or consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require as a condition of such licence or consent, where such a requirement would be reasonable, an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement was executed.

        Comment

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