s laundry, or pay the rent, the former being personal and the latter being proprietary, and the burden under the personal covenants would run with the land provided the assignment was NOT in contradiction of any of the covenant stipulations. Moreover, the only time a burden under the covenant may not run with the land is when it is expressed to be personal (s 2 and 3 of the LTCA 1995). This shall be considered below.
(a) As regards the repair covenant, it is enforceable against the assignee, as the burden passes to Meg by power of the statute so long as the assignment was not in contradiction of any other covenant. Since Emma was obligated to obtain consent of the landlord under the lease prior to an assignment (probably to make her sign an Authorised Guarantee Agreement under ss 5 and 16 of the LTCA) which she did not, it is reasonable to assume that she has breached the covenant herself, hence, she was not statutorily released from liability (s 5). Thus, Richard may sue Emma for damages for breach and Meg for specific performance, though it is difficult to enforce a repairing covenant as the courts regard it harder to monitor. However, in light of exceptional circumstances, where the tenant is in breach of her covenant to obtain consent before assignment, it is likely that the courts would grant specific performance to Richard against Meg requiring her to repair the property (Rainbow Estates v Tokenhold (1988)), owing to Richard’s benefit of the repair covenant.
Moreover, since there is no distinction made under the act between personal and proprietary covenants, nor was it expressed the be personal, Richard may enforce the painting covenant against Meg (ss 2 and 3 of the LTCA).
(b) Richard has the ability to forfeit the lease owing to the forfeiture clause in the original lease and thereby obtain possession of the property. However, in order to do this successfully, he needs to follow the exact procedure laid down in s 146 of the Law of Property Act 1925