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The Court of Appeal has upheld a decision from last summer that a licence for alterations entered into without joining in a guarantor or obtaining its consent operated to release that guarantor.
This is based on the common law rule that a variation to a principal contract (without the guarantor’s consent) releases the guarantor unless it is self-evident that the variation was insubstantial or non-prejudicial to the guarantor.
The alterations covenant in this case was absolute (so no alterations were contemplated at the time the lease was granted). By giving consent to the tenant’s alterations, the landlord had potentially increased the burden on the guarantor (in particular, the alterations significantly increased the tenant’s repairing obligations). The guarantor had not consented to this and was therefore released from liability.
Whilst there is no new law here, the case is a useful reminder for landlords to ensure that they make guarantors a party to all licences, variations and supplemental lease documents.
H&M is the latest retailer to confront its landlords about this ‘two tier retail market’ in an attempt to explore and negotiate more favourable terms.
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Ann Summers is the latest retailer to have entered into new voluntary deals with the majority of their landlords, rather than using the CVA process.
We previously reported on the High Court decision of S Franses Ltd v The Cavendish Hotel (London) Ltd in which it was held that a landlord’s motive could not prevent it from successfully utilising ‘ground (f)’ under s30(1) of the Landlord and Tenant Act 1954 to oppose a lease renewal.
The FCA are encouraged to find that the implementation of the new rules has encouraged financial institutions to manage whistleblowing cases and concerns fairly, consistently and in a manner that protects the individual whistleblower.
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