Facts
- A lessor served a notice of re-entry to the lessee under s 146 of the Law of Property Act 1925 for the breach of a covenant not to share possession of business premises after a pizza takeaway restaurant (not the lessee) started trading at the lessor’s business premises.
- The notice alleged that the lessee had “parted with possession”
- The lessor took physical (peaceable) possession and changed the locks
Issue
- Had there been a breach; was the notice effective; was the breach remediable?
Decision
- No breach, ineffective notice, but if the notice had been effective, the breach was remediable
Reasoning
- Possession must be distinguished from occupation – just because another business was occupying the land did not mean that the lessee had parted with possession – there had been no breach by way of parting with possession
- The s 146 notice was therefore ineffective
- Even if the notice was effective, it would have been remediable, and was remedied by the lessee’s acquisition of all of the shares in the occupying pizza takeaway company
