Remediability

Question 1

How can breaches be classified

Answer 1

• Breaches can be classified into positive (requiring the tenant to do something) or negative (restricting the tenant from doing something), and one-off or continuous breaches (so four possible types of breaches).

Question 2

Which s contemplates that some breaches are capable of remedy

Answer 2

• S 146, clearly contemplates that some breaches are capable of remedy so the previous approach cannot apply. In light of expert clothing case, accepted that the concept of capability of remedy turns on whether the harm done to the landlord can be remedied.

Question 3

Expert clothing

Answer 3

Expert Clothing v Hillgate House: Breach of covenants (i) to convert the premises into a gymnasium by a specified date and (ii) not to mortgage the premises without giving notice to the landlord Slade LJ held “the test for Remediabilty becomes one of whether the harm that has been done to the landlord by the relevant breach is for practicable purposes capable of being retrieved. In the ordinary case, the breach of a promise to do something by a certain time can for practical purposes be remedied by the thing being done, even out of time.’

Question 4

A failure to refrain from assigning a lease

Answer 4

Scala House v Forbes

Question 5

What cannot be remedied

Answer 5

No positive breach of a positive covenant is not capable of remedy

Question 6

Erecting signs

Answer 6

Savva v Hussein.

Question 7

Insurance claims

Answer 7

Telchadder v Wickland Holdings