A tenant was in breach of a yielding-up covenant by failing to remove asbestos from a site.
A tenant was in breach of a yielding-up covenant by failing to remove asbestos from a site.
Land was originally let in 1972 for a term of 42 years to a company that constructed a cold storage and distribution depot on the land. Under the lease, the tenant covenanted:
“at the expiration or sooner determination of the said term quietly and peaceably to deliver up the demised premises leaving the same in good and substantial repair and condition to the satisfaction of the Board having first (if required by the Board to do so) removed any buildings or works and having made good to the satisfaction of the Board all damage occasioned to the demised premises by or in such removal.”
In due course, the lease was assigned to the current tenant (P). As P failed to remove all the buildings at the end of the term as requested by the landlord (L), L granted licences to P’s parent company to enable it to clear the site. However, it seems that the parent company’s contractors caused asbestos left behind in the buildings to be spread across the site.
Did the presence of asbestos mean that P was in breach of its yielding-up covenant?
The use of the word ‘condition’ in the yielding-up covenant showed that P’s obligation was capable of extending to works that went beyond pure ‘repair’. The presence of the asbestos meant that the site was in a damaged or deteriorated condition (as opposed to in a ‘good condition’) and its removal was reasonably required to comply with the covenant.
Professional Development Lawyer
david.harris@brownejacobson.com
+44 (0)115 934 2019