Are You Unintentionally Breaching An Absolute Covenant?

On 6 May 2020 the Supreme Court gave judgment in the case of Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18, finding that a landlord was not entitled to grant a licence for alterations for works because it was in breach of an absolute covenant (i.e. an absolute prohibition against doing something), which was a mutually enforceable covenant (i.e. the landowner must enforce covenants and obligations against all other occupiers). An absolute covenant differs to a qualified covenant, as the latter may permit a certain act with the prior written consent of a landlord, whereas the former prevents any action.

If a landowner grants occupants (i.e. tenants or plot owners) the benefit of a mutual enforceability covenant, they will put themselves in breach of covenant if they give any one of the other occupiers permission to do something that breaches an absolute covenant. This scenario may arise when: