Where a tenancy (other than a local authority tenancy) contains a clause that a tenant may not assign the tenancy without the consent of the landlord, which consent is not to be unreasonably withheld, the landlord has a duty to reply to any written application for consent within a reasonable period of time and to give reasons for his decision [section 1(3) Landlord and Tenant Act 1988]. The application for consent must be served in accordance with any relevant terms of the tenancy [section 5(2)(a) Landlord and Tenant Act 1988] or, if the tenancy does not say how applications or notices may be served, the tenant may use any of the methods in section 23 Landlord and Tenant Act 1927 (personal service, leaving at last known address, sending by registered post to last known address or service on authorised agent)

In E.ON UK PLC v Gilesports Ltd [2012] EWHC 2172 (Ch), E.ON was the leasehold owner of a commercial property of which Gilesports Ltd was the underleaseholder. In 2006, Gilesport’s parent company (Sports Direct International plc) acquired the Original Shoe Company Ltd which it moved into the property in place of Gilesports without the consent of E.ON. In December 2007, Sports Direct sought to sell OSC to a third party which meant that Gilesport has to assign its lease to OSC. A request for permission to assign was sent to E.ON by email. No time frame was specified for a reply nor was there any indication that the matter was urgent. Eleven days after the email had been sent and before E.ON had responded, Gilesport purported to assign the lease. E.On issued proceedings seeking a declaration that Gilesport remained the lessee. By way of response, Gilesport claimed that there had been a breach of section 1 Landlord and Tenant Act 1988 by way of failing to respond within a reasonable time.

The declaration was granted. The tenancy provided for service at the landlord’s last known place of business; an email did not qualify. Accordingly, section 1, Landlord and Tenant Act 1988 (duty to respond) did not apply. If that was wrong, then in any event the landlord had not failed to respond within a reasonable period of time. Given the financial and legal implications of the request, it was unrealistic to think that a decision should have been reached within 11 days.

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