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Tazmin granted a 10-year lease to Chelsea in 2012, furthermore then assigned the lease the to Leopold without the permission of Tazmin. The lease included an express covenant which stated that the tenant “shall not assign or sublet the premises without the written permission of the landlord”. Therefore, Chelsea has breached the covenant in her lease.

At common law an assignment of a lease is a complete transfer of the tenant’s interest under the lease and she retain nothing. In this case the assignee takes on the rights and obligations contained in the lease. In regards to the Northern Ireland jurisdiction the basic common law position on assignments was stated by Murray J. in Northern Ireland Carriers Ltd v Larne Harbour Ltd (1981): “ … at common law the lessee has an interest which he can dispose of as he pleases unless prevented or restrained by clear words…..”. Equivalently this is the same principle in England and Wales as it was stated in Keeves v Dean (1924) and Leith Properties v Byrne (1983) that the basic common law position is that the lessee has an interest that he can dispose of as he pleases unless the landlord has inserted a covenant into the lease restraining or prohibiting assignment. In addition, regarding the assignment to Leopold the key provision is Section 10 of Deasy’s Act which states ‘where a lease contains an agreement \(or covenant) restraining or prohibiting assignment it shall not be lawful to assign any part of the lands which are subject to the lease without obtaining the written consent of the landlord or his lawfully authorised agent.’ In Clifford v Reilly (1870) the words “it shall not be lawful” was held to mean that the purported assignment is null and void with the exception that the lessee has committed a breach of the covenant. No estate passes to the purported assignee. This means that the assignment is between Chelsea and Leopold is void and does not exist making Chelsea the tenant still. This was seen in the case of In Craigdarragh Trading Company Ltd. v Doherty and Another (1986) Doherty was the lessee of premises comprising a unit of Carryduff Shopping Centre in which he carried on the business of running an offlicense. The lease contained an agreement which stated that the lessee agreed: “Not to assign, underlet or part with the demised premises of any part thereof without the consent of the landlord”.Doherty wished to assign his lease to the Woods Company.

Permission to do so was sought from the plaintiffs but no actual permission was ever given. The purported assignment went ahead anyway on 18 January 1985. The Woods Company began to sell tobacco. Floyd’s, the owners of the shopping centre’s newsagent and tobacconist complained on the basis that this was having an adverse effect on their business. Held: Failure to observe the formalities of section 10 renders any purported assignment null and void. For this reason, Doherty was still the tenant. In both jurisdictions Northern Ireland and England and Wales according to Mark Thompson in his Modern Land Law Book, the original landlord (Tazmin) and original tenant ( Chelsea) have both a privity of contract, as they are parties to a contract in which they can enforce against each other, and privity in estate because they have also created an estate in land. Therefore, due to the Doctrine of privity, the original tenant which is Chelsea will remain liable to Tazmin the original landlord for the duration of the lease even after the assignment to Leopold. A case which emphasis this for England and Wales Jurisdiction is the case of In Allied London Investments Ltd v Hambro Life Assurance plc (1985) where the assignee defaulted on the rent nine years after assignment and the original tenant (defendant) was liable for the arrears. However, this position has been codified by section 79 of the Law of Property Act 1925. According to Judith Bray, Tarmin can bring legal action against Chelsea for breach in agreement Section 17 of the Landlord and Tenant Covenants Act 1995 now specifies that (even in respect of “old” leases 1) the landlord may only take action against the original tenant if notice is served on the original tenant within 6 months of the liability arising

1 Sections 17 to 20 apply to both “old” and “new” tenancies....