UK: Consents To Assign – One Wrong Invalidates Two Rights

Last Updated: 27 October 2016
Article by Alexander Harris, Emma Broad and Ross Wilson

The High Court decision in No.1 West India Quay (Residential) Ltd v. East Tower Apartments Ltd [2016] EWHC 2438 (Ch) is a stark reminder to both landlords and tenants of the need to be aware of and to comply with the provisions of the Landlord and Tenant Act 1988 (1988 Act) when dealing with applications to assign where landlord's consent is not to be unreasonably withheld.


East Tower Apartments Ltd (Tenant) held 42 long leases of flats in a residential tower block at West India Quay. In 2015 the Tenant made a number of applications to its landlord, No. 1 West India Quay (Residential) Ltd (Landlord) for consent to assign some of its leases.

The leases were all drafted on substantially the same terms. Those terms included a requirement for landlord's consent to assignments. As the leases stipulated that the landlord's consent could not be unreasonably withheld the provisions of section 1 of the 1988 Act applied.

Section 1 of the 1988 Act applies (with some exceptions) to both commercial and residential property where landlord's consent is required to an assignment, underletting, charging or parting with possession of premises and that consent cannot be unreasonably withheld. It requires, among other things, that a landlord must, within a reasonable time, grant consent to the application unless it is reasonable not to and further that, where consent is granted subject to conditions, those conditions must be reasonable.

Unfortunately three of the Tenant's applications did not go according to plan and litigation ensued. In respect of two of the disputed applications the Tenant sought declarations that the Landlord had unreasonably refused consent. In relation to the third disputed application the Tenant sought a declaration that the Landlord had failed to grant consent within a reasonable time. The matter reached the High Court on appeal.

Unreasonable refusal of consent

The three grounds the Landlord gave for not consenting to the first two disputed applications were that the Tenant had refused to:

  1. provide a bank reference for the proposed assignee;
  2. allow the Landlord to inspect the premises at the Tenant's cost prior to determining the application; and
  3. provide an undertaking to cover the Landlord's fees for dealing with the application.

On the facts it was decided that the first two grounds were both reasonable. In relation to the bank reference it was difficult to see how such a "requirement could be stigmatised as unreasonable even if many landlords might have dispensed with it". The request to inspect was also reasonable given "that serious and unremedied breaches of repairing covenants may justify a refusal of consent to assign" and certain once-and-for-all breaches, such as unlawful alterations, would not be enforceable against an assignee. The costs of such inspection were reasonable "in the context of an assignment of a long lease of prime residential property in London".

Unfortunately for the Landlord, the third ground for refusal, namely the request for an undertaking, was held to be unreasonable because of the amount sought.

Once the court had determined that only two out of the three reasons for withholding consent were good the question was whether the third, bad, reason vitiated the two good ones. The court held it did. Looking at the correspondence it was clear that the Landlord's position was that it would not proceed to grant the consent unless and until it received the undertaking for costs, irrespective of whether or not the Tenant complied with the other conditions in the meantime.

Failure to grant consent within a reasonable time

Unlike the other two disputed applications, the Landlord did grant consent to the third disputed application. The problem was that the Tenant alleged that the Landlord had not granted that consent within a reasonable time as required by the 1988 Act.

A landlord must respond to a tenant's application for consent within a reasonable time. The trigger for that "reasonable" time to start running is service of the tenant's written application for consent. Section 5(2) of the 1988 Act provides that an application is to be treated as served if it is served in any manner provided by the tenancy. Here the leases provided for notices to be served by being "left or sent through the first-class post by pre-paid letter addressed to the Lessor at its registered office".

In 2014 the Landlord had sent the Tenant a "sales pack" advising that any application for consent to assign should be sent to a specified address, not being the Landlord's registered office. When the Tenant came to make its third disputed application it duly sent the same to the address specified in the sales pack (Initial Application) rather than to the Landlord's registered office. The question was whether the Initial Application was sufficient to start time running under the 1988 Act.

The court decided the Initial Application did not start time running; time only began running for the purposes of the 1988 Act when the Tenant served a further application on the Landlord at its registered office, some 33 days after the Initial Application. On the facts the "sales pack" did not amount to an offer by the Landlord to waive the formal requirements for service set out in the lease. Consequently the Initial Application had not been served as required by the 1988 Act.

The Landlord was held not to have failed to grant consent within a reasonable time as such consent had been granted 14 days after service of the application on the Landlord's registered office.


While it is important to emphasise that each case will turn on its own particular facts, this decision highlights two important points for those dealing with leasehold applications for consent falling within the provisions of the 1988 Act:

  • Tenants must ensure that their application for consent is correctly served in order to trigger the landlord's obligations under the 1988 Act. This will involve reviewing the requirements of both the 1988 Act and the lease. As the judgment leaves open the possibility that it may be possible for a clear statement to waive the service requirements in the lease, tenants should also check any subsequent correspondence from the landlord. If in doubt it may be safest to serve the application by more than one method to more than one address. 
  • Landlords should note that one unreasonable ground for refusal can spoil the reasonableness of the other grounds for refusal. Where, as here, it is felt that the good grounds for refusal only masked a bad ground for refusal, the latter will prevail and the decision not to grant consent will be held to be unreasonable. As such landlords should consider how they present their reasons for refusing consent.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
16 Oct 2017, Conference, Budapest, Hungary

Dentons is proud to sponsor the PILnet Global Forum to be held in Budapest between 16-19 October.

18 Oct 2017, Conference, Budapest, Hungary

Dentons is proud to sponsor the 2nd European Pro Bono Summit to be held in Budapest between 18-20 October.

25 Oct 2017, Seminar, Frankfurt, Germany

In the framework of our seminar on industrial espionage taking place on 25 October 2017 the Hessian Local Office for Protecting the Constitution will inform you about concrete dangers and about possibilities of cooperation with constitution protecting authorities in case of industrial espionage.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.