• The case of Hussein v Mehlman [1992] 2 EGLR 287 concerned the repudiation of leases by the innocent party, and it was found that such can occur where there was repudiatory breach – as is the case with ordinary contracts.

Facts of Hussein v Mehlman [1992] 2 EGLR 287

  • Mehlman, the D landlord, granted the C tenants a 3-year shorthold tenancy of a house
  • The Cs made several complaints to the D in respect of the disrepair of the dwelling house, with one bedroom becoming inhabitable due to the ceiling collapsing
  • The D refused to carry out repairs, the Cs returned the keys to him and moved out
  • The Cs sought a declaration that the D was in repudiatory breach by letting the house, and that they had accepted the repudiatory breach to end the lease by handing back the keys and moving out
  • The Cs also sought damages for said breach

Issues in Hussein v Mehlman [1992] 2 EGLR 287

  • Did the disregard of complaints and the refusal to carry out repairs by the D create a repudiatory breach, allowing the Cs to terminate the contract a year earlier than they were contracted to?
  • Did the breaches entitle them to damages?

Held by the County Court

There were severe breaches by the D, and the breaches were repudiatory. The Cs were therefore entitled to accept the repudiatory breach, terminating the lease, and were awarded damages.

Stephen Sedley QC

Stephen Sedley QC noted that, albeit it was in different circumstances, there was a contract

  • “Although a contract of letting, whether for a term of years certain or for a periodic “springing” term, differs from other contracts in creating an estate in land, it is nevertheless a contract” [86]

Citing National Carriers Ltd v Panalpina (Northern) Ltd [1981], Stephen Sedley QC held that a lease may be terminated by frustration, however the circumstances are rare

  • “The minor premise that a lease cannot be determined by frustration has been overset by the decision of the House of Lords in National Carriers Ltd v Panalpina (Northern) Ltd” [89]
  • “I bear in mind, however, that the House of Lords was extremely cautious about the range of situations in which it would allow the doctrine of frustration to operate on a lease … lying only between “never” and “hardly ever”, coming down in favour of the latter.” [90]

Repudiation can occur in leases, but can also be altered by contractual provisions

  • “a contract of tenancy can be repudiated like any other contract has a number of important implications … the right to terminate by acceptance of repudiatory conduct may itself be modified by further contractual provisions which lay down conditions, supported by statute, for the exercise of the right.” [90]

To be able to award damages, the D must have breached the covenant – which he did

  • “the defendant was making it as plain as was possible that he was not going to comply with his covenant to keep the structure and exterior of the premises in repair. His previous conduct in relation to other breaches amply demonstrated that this was not due to a bona fide mistake of law or to logistical difficulties with builders: it was due to the determination of the defendant and his son to put not a penny back into the house and, if necessary, to let the tenants suffer hardship in consequence.” [91]