Case D: Remediable Breach of Tenancy

7.78 Case D enables the landlord to serve notice to quit in two separate situations where the tenant has failed to comply with a written notice requiring him to remedy breaches of tenancy.

1Non-payment of rent

(a) Notice to Pay (Form 1)

7.79 Case D paragraph (a) enables the landlord to serve notice to quit where the tenant has failed to comply with a written notice requiring him, within two months from the service of the notice, to pay any rent due in respect of the holding to which the notice to quit relates. The preliminary notice to pay rent must be given in prescribed form.¹⁷² Because failure to comply may lead to forfeiture of the tenant’s interest, the statutory requirements are construed strictly against the landlord.

7.80 This decision can constitute a procedural pitfall for landlords wishing to use Case D. Two facets of the rule should, however, be appreciated.

•Section 48 of the 1987 Act only applies where the holding includes a dwelling. It does not apply to bare land holdings.

•The provision (or, rather, non-compliance with it) is in the nature of a procedural bar to the collection of rent. Once notice has been served in accordance with s 48 all unpaid rent becomes due, and is recoverable in respect of periods before the notice was given. The tenant’s argument in Dallhold Estates (above) that non-compliance rendered rent irrecoverable for all time was rejected both at first instance and in the court of appeal.

7.81 A further question concerns the tenant’s right to set off against the rent demanded any cross-claim against the landlord, and thereby impugn the accuracy of the rent demanded (and of the notice to pay). Whether an equitable set-off¹⁷⁷ can be claimed against rent formally demanded under Case D is open to doubt.

7.82 The notice to pay must be served by or on behalf of the person who is at the time of service the landlord. Thus in Pickard v Bishop¹⁸⁰ a notice to pay (and subsequent notice to quit) were invalid where the ‘landlord’ had previously transferred his reversionary estate to trustees under a discretionary trust, for the notice should have been served by the latter as landlords for the time being. The notice to pay must also accurately specify the tenants at the date of service, and if the holding is held on a joint tenancy all joint tenants must be served.¹⁸¹

7.83 The tenant’s only mode of challenge is to demand arbitration within one month of service of notice to quit.

7.84 A tenant purporting to exercise an option to purchase remains in occupation as a tenant until the exercise of the option is validly completed. He remains in occupation until then in the capacity of tenant, not purchaser, and his continuing liability for rent can be enforced by Notice to Pay and proceedings under Case D.¹⁸⁴

7.85 The tenant must pay the rent demanded in full within the two months allowed. Substantial compliance will not suffice.¹⁸⁵ If he fails to do so the landlord acquires an indefeasible right to serve notice to quit, such that even if the tenant pays rent owing after the expiry of the two-month period, but before service of a notice to quit, this will not avail him.¹⁸⁶ It follows that common law rules governing the tender, appropriation and mode of payment can have an important role in deciding whether rent demanded has been paid within the statutory period.

(b) Mode of payment

7.86 Payment must be made in legal tender before expiry of the two-month period, unless the parties have agreed an alternative form of payment. Agreement to accept payment by cheque can be express or implied. An implied agreement to accept payment by cheque will be inferred from long usage showing this has become the accepted mode of payment by the parties – this inference will not be readily drawn, however, and must be clearly and emphatically supported by the facts.¹⁸⁷ Where payment by cheque is the accepted mode of payment, payment is deemed to be made when the cheque is posted.¹⁸⁸ This rule does not apply, however, where the paying bank is not, as between itself and its client, obliged to honour the cheque.

(c) Tender of payment

7.87 Tender of payment by cheque, even if unconditional, does not discharge a debt at common law. It will, however, provide the tenant with a defence (and entitlement to costs) in subsequent possession proceedings. To plead the defence of tender, the tenant must establish that he is still ready to make payment and must offer a profert in curiam of the money tendered.¹⁹¹ Pleading tender does not bar the debt, rather it prevents the landlord taking advantage of his own act in failing to present cheques for payment. Payment by cheque is conditional, the debt being retrospectively satisfied on the cheque being honoured. So, if the cheque is dishonoured on presentation, and re-presented for payment after the two months allowed following notice to pay, Case D(a) will be available.¹⁹² This will be the case even if (on second presentation after the two months has expired) the cheque is honoured. Re-presentation of the tenant’s cheque, before the service of notice to quit, will not waive the landlord’s right to serve a Case D notice to quit.¹⁹³ The defence of tender is only available as long as the landlord refuses to accept payment. So, for instance, it will cease to apply when a fresh cheque has been requested, provided the tenant has been given a reasonable period in which to produce one.¹⁹⁴ Note also that once the post has been accepted as a mode of tender, an express request for payment to be made in an alternative manner (eg to the landlord’s agent) does no more than provide the tenant with an alternative destination for the payment.¹⁹⁵

(d) Appropriation of payments

7.88 Where several instalments of rent are in arrears, the appropriation or otherwise of payments made by the tenant can have an important impact on the validity of any subsequent notice to quit.

(e) Notice to quit

7.89 If the tenant fails to pay within the time limit in the Notice to Pay, the landlord can serve notice to quit, and subsequent payment will not avail the tenant. It has been held that a notice to quit posted on the last day allowed for payment, but received on the following day, will be treated as being served on receipt. If payment has not been made by midnight on the last day of the two month period such notice to quit will be good, for the landlord will have brought himself within Case D at the date of service, notwithstanding that the notice to quit was posted earlier, during the two month time limit.²⁰¹

7.90 The only avenue of challenge available to the tenant receiving a notice to quit is to serve notice within one-month demanding arbitration.²⁰² He can challenge the veracity of any of the reasons stated in the notice to quit: eg (i) that the Notice to Pay was bad, demanded rent not owing, or the wrong amount; or (ii) that the notice to quit is bad as the rent was paid within the two months allowed. If he fails to demand arbitration, or his demand lapses,²⁰³ he will not be able to challenge either the notice to pay or notice to quit, except (in the latter case) on common law grounds for ambiguity or fraud, etc.

2Failure to remedy other breach of tenancy

7.91 Case D(b) enables a landlord to serve notice to quit where the tenant has failed to comply with a notice requiring him, within a reasonable time, to remedy any breach of the tenancy which is capable of being remedied.

7.92 Two distinctions must be made. The first is between those breaches which are remediable by the tenant, in respect of which proceedings under Case D will be appropriate, and those ‘irremediable’ breaches of tenancy to which Case E (below) is applicable. This distinction is encountered also in relation to forfeiture proceedings at common law, and the jurisprudence on the interpretation of s 146 of the Law of Property Act 1925 may be of assistance (if not authority) in interpreting Cases D and E.²⁰⁴ The distinction used to be based on the nature of the breach itself, and not on the tenant’s ability to remedy it. More recently, however, the courts have moved towards a more pragmatic view, concentrating on whether the effect of a breach is capable of remedy within a reasonable time, in a way that will put the landlord in the position he would have been in had the breach not occurred.²⁰⁵ It follows that breach of a positive covenant will usually be capable of remedy; for example, breach of a covenant to reconstruct the premises within a specified time will be ‘capable of remedy’ by the subsequent performance of the covenant, even if it takes place outside the time set for performance in the covenant itself.²⁰⁶ The following have been held to fall, respectively, into each category:

(a)Remediable breaches. Failure to repair, or to cultivate in accordance with the rules of good husbandry; failure to keep the property adequately insured;²⁰⁷ failure to reside permanently in the farmhouse at the holding, contrary to a residency condition in the lease.²⁰⁸

(b)Irremediable breaches. Breach of covenant not to assign, sublet or part with possession;²⁰⁹ breach of a covenant to lay out insurance moneys in reinstating the property following damage.²¹⁰

7.93 Notice to quit under Case D(b) is only appropriate where the breach complained of is of a remediable nature.

7.94 A second distinction must be made, however, between those remediable breaches which require the tenant to do some work in order to remedy the breach complained of, and those which do not require work to effect a remedy. The procedure to be followed by the landlord under Case D(b) is different in each case. Examples of breaches, the remedy of which will involve no work of repair by the tenant, include a failure to insure, or causing the property to be used in a manner amounting to a nuisance. Failure to keep the property in a tenant-like state of repair, or breach of a term obliging the tenant to farm in accordance with the rules of good husbandry, will on the other hand be breaches requiring works of repair or maintenance by the tenant.

3Form 2: Notice to do works of repair, maintenance or replacement

7.95 If the tenant is failing to keep the property in good repair or is failing to farm in accordance with the rules of good husbandry, the landlord must first serve a notice to do work in Form 2, prescribed by the Agricultural Holdings (Forms of Notice to Pay Rent or to Remedy) Regulations 1987.²¹¹ The notice must comply with the prescribed form if it is to be valid and effective, or be ‘in a form substantially to the same effect’.²¹²

7.96 The notice must specify the works of repair, maintenance or replacement required to remedy the breach complained of. It must also state a reasonable period within which the tenant can carry out that work, such period to be not less than six months.²¹³ Once notice is served, any further notice requiring the doing of any work which is served on the tenant less than 12 months after the earlier notice shall be disregarded, unless the earlier notice was withdrawn with the written agreement of the tenant.²¹⁴

(a) Arbitration on notice to do work

7.97 The procedure to be followed following service of Notice to Remedy in Form 2 is somewhat complex. The tenant is given considerable protection against the use of the statutory procedures in an oppressive manner. The tenant can challenge a notice in Form 2 by serving written notice requiring the matters specified in it to be referred to arbitration under the Arbitration Order. If he wishes:

(a)to contest his liability to do the work, or any part of the work, required by the notice to do work; or

(b)to request the deletion from the notice of any item of work on the ground that it is unnecessary or unjustified; or

(c)to request the substitution, in the case of any item of work, of a different method or material for the method or material required to be used by the notice,

then he must, within one month after service of the notice to do work,²¹⁵ serve written notice on the landlord requiring the questions he is challenging to be referred to arbitration under the Arbitration Act 1996. This is the only opportunity he has to challenge these three matters, and if he fails to do so he is precluded from raising them again at the notice to quit stage. The tenant’s arbitration notice does not have to be in a prescribed form, but it must specify clearly those items in respect of which the tenant denies liability, those items he claims are unnecessary or unjustified, and also any method or material in respect of which he desires a substitution to be made.²¹⁶ If any of these matters are referred to arbitration, the tenant is not obliged to carry out the work which is the subject of the reference to arbitration until the arbitrator decides he is liable to do it. He must, however, carry out any work he is not referring to arbitration.

7.98 If the tenant chooses to refer any of the three matters above to arbitration, then he must also refer to arbitration at the same time any other question arising under the notice to work which he wishes to dispute,²¹⁷ eg he may want to allege that the time allowed for the completion of the work is unreasonable. He must do so by referring the matter to arbitration at the same time as questions (a), (b) or (c) above.

7.99 If the tenant is not requiring arbitration on any of the three matters above, he can either require arbitration at the notice to remedy stage or at the later notice to quit stage.²¹⁸ Moreover, even if he has referred the time allowed for the work to arbitration, he can still require arbitration on a subsequent notice to quit on the ground that something happened before the expiry of that time which rendered the time allowed to do the work unreasonably short.²¹⁹

7.100 The arbitrator has wide powers to modify the notice so as to delete any items of work he considers unnecessary or unjustified. In doing so he must have regard to the overriding interests of good husbandry as respects the holding, and of sound management of the estate of which it forms part, or which it constitutes.²²⁰ He may also, of course, decide that the tenant is under no obligation to do the work required, in which case the notice to do work will be of no effect. Where the tenant refers to arbitration the methods and materials to be used to carry out the work, the arbitrator can modify the notice to substitute different methods or materials, provided he is satisfied that those specified in the notice itself would involve undue difficulty or expense. The materials or methods substituted must, however, be as effective for the purpose as those originally specified in the notice.²²¹ The time within which work is to be done is extended until the termination of the arbitration.²²² The time stipulated in the notice is not extended, however, in respect of work which has not been referred to arbitration, and this must be completed by the tenant within the time allowed, on pain of notice to quit. If the tenant is referring his liability to do work to arbitration, he may wish to carry out any work which is the subject of that reference without waiting for the arbitrator’s award. If he does so, and the arbitrator subsequently finds that he has carried out work which was not his liability, then the arbitrator can determine the reasonable cost of the work that has been done and this will be recoverable from the landlord.²²³

7.101 Where the arbitrator finds that the tenant is liable to comply with a notice to do work, or part of it, he can further extend the time for doing that work by such period as he thinks fit.²²⁴ Where an extension of time is allowed the arbitrator can, either on his own motion, or on an application made by the landlord not less than 14 days after the end of the arbitration, set a fixed date for the termination of the tenancy if the tenant fails to comply with the notice within the extended period.²²⁵ That date cannot be earlier than the date on which the tenancy could have been terminated by notice to quit served on the expiration of the time originally specified in the notice to do work, or six months after the end of the extended period for compliance, whichever is the later.²²⁶ If the landlord applies for the fixing of a termination date he must give notice of application to the tenant, who will then be entitled to be heard on the application. The question may, however, be determined as part of the arbitration proceedings on the arbitrator’s own motion, and not by separate application. If the tenant then fails to do the work requested within the extended period, the landlord must serve his notice to quit within one month after the expiry of the extended time. If he does so, however, the notice to quit will be valid even though it does not expire on a term date of the tenancy and is of less than 12 months’ duration, provided (of course) that it expires on the date for termination fixed by the arbitrator.²²⁷

(b) Arbitration on notice to quit

7.102 If the tenant fails to comply with a notice to do work, the landlord can serve a Case D notice to quit. It is too late at this stage for the tenant to contest his liability to do the work, the necessity of any of the work required, or the methods or materials specified in the notice to do work. Neither can he challenge other matters previously raised on arbitration (other than the time allowed for compliance). He may wish to contest other issues, eg that he has done the work in question or that something has occurred which rendered the time originally allowed in the notice unreasonable. If he wishes to raise these or other matters he must serve a written notice within one month of service of the notice to quit, requiring them to be referred to arbitration under the Arbitration Act 1996.²²⁸ The operation of the notice to quit is then suspended until the termination of the arbitration.²²⁹ If the tenant is alleging that the time specified in the notice to do work, while originally reasonable, has become unreasonable by virtue of subsequent events, then the arbitrator has to extend the period allowed for the work to be done. His powers to do so are similar to those available at the notice to do work stage. He can extend the period allowed for the work to be completed by such period as he considers reasonable, having regard to the length of time which has elapsed since the original service of the notice to do work.²³⁰ Where he does so, he has similar powers to those available at the earlier stage to fix a termination date of the tenancy in the event of non-compliance by the tenant within the extended period.²³¹ The landlord must then serve a second notice to quit within one month of the expiration of the extended term. The second notice to quit will be valid even though it is of less than 12 months’ duration and expires on a date other than a term date of the tenancy.²³² The second notice cannot take effect, however, if the tenant serves a counter-notice within one month of service, unless the agricultural land tribunal has consented to its operation. On an application by the landlord for consent to the operation of his second notice to quit the tribunal must consent unless it appears to them that a fair and reasonable landlord would not insist on possession. In so deciding the tribunal must have regard to the extent to which the tenant has failed to comply with the notice to do work, the consequences of that failure and the circumstances surrounding it.²³³

7.103 Where the notice to quit has effect following an arbitration, or because a tribunal has consented to its operation, the tenant can apply to the arbitrator for a postponement of termination of the tenancy. If the notice to quit would come into operation within six months of the termination of the arbitration or the granting of tribunal consent, the tenant can within 14 days of the termination of arbitration or the giving of consent apply to the arbitrator, who has power to postpone the termination of the tenancy for a period not exceeding 12 months.²³⁴ He must serve notice of application on the landlord, who has a right to be heard on the application.

7.104 If the tenant claims to have done the work in question he must show that he has complied with the notice in its entirety. Failure to comply with one of the requirements of a notice to do work, if the unfulfilled requirement is not de minimis and is in respect of a term of the tenancy which was consistent with the tenant’s responsibility to farm in accordance with the rules of good husbandry, constitutes sufficient failure for the purposes of Case D.²³⁵ Substantial compliance will not suffice. If the notice requires more than one breach of tenancy to be remedied then the period allowed for the work in the notice must be such as to allow time to remedy all the breaches specified. If the period allowed is insufficient to allow all the work specified to be done, then the notice to do work (and a subsequent notice to quit) would be invalid.²³⁶ However, if the period specified is sufficient to remedy all such breaches, but it subsequently becomes impossible to remedy some of them due to changed circumstances, it seems the landlord can rely on those matters which have not been remedied to serve notice to quit. Thus in Shepherd v Lomas²³⁷ a landlord served notice to do work specifying a reasonable period for compliance, but then failed to provide the materials needed to remedy one group of breaches until almost the end of the period, when it was clearly impossible for the work to be completed in time. Because the tenant had not remedied any of the breaches complained of, the landlord could rely on those in respect of which the tenant had to provide materials himself to serve a valid notice to quit. Although the ‘reasonableness’, and hence the validity, of a notice to do work will depend largely upon the length of time allowed for the work required to remedy breaches of tenancy, nevertheless the personal circumstances of the tenant will also be relevant. The arbitrator, when deciding whether the time allowed is reasonable, must weigh the landlord’s interest against factors relied on by the tenant for giving him a reasonable opportunity to fulfil his obligations.²³⁸

(c) Tribunal Consent to Notice to Quit

7.105 Section 28 of the 1986 Act extends further protection to the tenant, and places a final restriction on the landlord successfully seeking possession. The tenant can, within one month of the giving of notice to quit, serve a counter-notice requiring the landlord to obtain tribunal consent to its’ operation. Reference to the first tier tribunal, or (in Wales) the agricultural land tribunal, is open to the tenant either instead of, or in addition to, demanding arbitration on the notice to quit.

7.106 He has a choice of remedy, although arbitration prevails where both jurisdictions are invoked. If a notice demanding arbitration is served within one month following notice to quit being given, then the tenant’s counter-notice referring the matter to the tribunal is rendered invalid.²³⁹ He can, in other words, serve a counter notice referring the matter to the tribunal, and then change his mind and demand arbitration (provided he does so within one month of giving the notice to quit). If he fails at arbitration he can then serve a counter notice seeking a reference to the tribunal within one month of delivery of the arbitrators award.²⁴⁰ He cannot, however, do the opposite ie request tribunal proceedings and then (having failed before the tribunal) change his mind and serve a counter notice invoking the tribunal jurisdiction.

7.107 If a valid counter-notice is given the landlord must apply to the tribunal for consent to his notice to quit. He must do so within two months of receipt of the tenant’s counter notice (one month in Wales).²⁴¹ Although the procedure is complex, the landlord’s position is relatively straightforward in most cases, requiring an application to the tribunal within one month of the tenants counter notice, whether it is given initially or following an unsuccessful arbitration. If on the other hand the tenant requests arbitration, his reference will lapse if an arbitrator has not been appointed, or an application for an appointment made to the RICS, within three months.²⁴² In William Smith (Wakefield) Ltd v Parisride Ltd.²⁴³ the tenant, somewhat unusually, responded to the landlords notice to quit under Case D by simultaneously demanding arbitration and serving a counter notice referring the notice to the tribunal for consent.²⁴⁴ The counter notice was held not to have been invalidated by the request for arbitration in this situation.²⁴⁵ Where this happens the landlord is placed in a dilemma. He must apply to the tribunal for consent to the operation of his notice to quit within one month. Either party may apply for the appointment of an arbitrator; provide they do so within three months of the demand for arbitration. The landlord will not know whether the arbitration is to proceed until three months have elapsed, by which time he will be out of time to apply for consent to his notice to quit. In this situation, therefore, a counsel of caution would suggest that the landlord should initiate tribunal proceedings and then seek an adjournment if he wishes to preserve his position.

7.108 On the landlord’s application the tribunal must consent unless it appears to them that, having regard:

(a)to the extent to which the tenant has failed to comply with the notice to do work;

(b)to the consequences of his failure to comply with it, and

(c)to the circumstances surrounding the tenant’s failure,

that a fair and reasonable landlord would not insist on possession.²⁴⁶

7.109 The specific identification of the issues which the tribunal should at this stage refer to²⁴⁷ is clearly intended to restrict the tribunal’s discretion to grant possession by cutting out wider issues, such as relative hardship to the respective parties. Whether it completely achieves this is open to question, however, as the criteria of ‘circumstances surrounding any such failure’ is quite wide. This provision overrules the decision in Clegg v Fraser,²⁴⁸ decided on the former wording of s 28, in which it was held that the tribunal could take cognisance of all relevant circumstances. The tribunal’s discretion is now limited to considering issues of substantial compliance and the extent to which the tenant has complied with his obligations under the tenancy and any relevant circumstances allegedly excusing such non compliance. It follows that the tenant who has (albeit belatedly) complied by the time of the hearing can may request a refusal of consent, and if successful frustrate the landlord at the last stage of a lengthy procedure.

4Form 3: notice to remedy not involving work

7.110 Any notice to remedy which does not involve the doing of any work of repair, maintenance or replacement by the tenant must be in Form 3, prescribed by the Agricultural Holdings (Forms of Notice to Pay Rent or to Remedy) Regulations 1987. The form used must, as with notices to do work, follow precisely that set out in the Schedule to the 1987 regulations if a valid notice to quit under Case D(b) is subsequently to be given. Notice to remedy in Form 3 is appropriate where, for instance, the tenant is failing to keep the premises adequately insured, or is allowing a sub-tenant in occupation to cause a public nuisance or commit other breaches of tenancy.

7.111 When notice to remedy is served the tenant cannot at that stage refer either his liability to comply, or any other question as to the validity of the notice, to arbitration. He can, however, claim arbitration on these issues later, if a notice to quit is subsequently served, on the ground that he has failed to comply with the notice to remedy. Where this happens he has one month following service of notice to quit in which to serve a notice requiring the validity of the notice to remedy, and his liability to comply with it, to arbitration. This is his only opportunity to challenge his liability to comply.

7.112 The period for compliance specified in the notice to remedy must be reasonable, but no minimum is prescribed. There are also no restrictions on the service of subsequent notices.²⁴⁹

7.113 During the arbitration the notice to quit is suspended.²⁵⁰ It resumes effect if the arbitration upholds the notice to quit. In this case, however, if the notice would come into effect on or within six months after the termination of the arbitration, the tenant has 14 days after the end of the arbitration in which to apply for a postponement in its operation. The tribunal can postpone the termination of the tenancy for a period not exceeding 12 months.²⁵¹

7.114 If the notice to remedy allowed a reasonable period for compliance, but that period has become unreasonable because of subsequent events, the arbitrator has power to extend the period by such amount as he considers reasonable.²⁵² He has power to specify a date for termination of the tenancy in the event of non-compliance by the tenant within the extended period.²⁵³

7.115 If the tenant fails to have the notice to quit struck down on arbitration, he cannot then go to the agricultural land tribunal. The landlord cannot be required to apply for tribunal consent to the operation of the notice to quit.²⁵⁴

5Compatibility of Case D with Human Rights Act 1998

7.116 It will be apparent from the above discussion that the position of a tenant served with a notice to remedy requiring work (Form 2) is substantially different to that of a tenant served with a notice to remedy in Form 3 (ie one not requiring work to remedy the breach alleged). If a notice to do work in Form 2 is served the tenant’s position is much stronger. He can refer the notice to do work to arbitration as soon as it is served, and the arbitrator has power to vary the notice and extend the time for compliance. If the arbitrator upholds the notice to do work, the tenant can still refer a subsequently served notice to quit to arbitration, eg if he claims that he has substantially complied or that the time allowed was rendered unreasonable by unforeseen events. And if he fails in this second arbitration, he can still refer he notice to quit to the first tier tribunal for consent. If a Form 3 notice is served, on the other hand, the tenant’s rights are more limited. He can refer the landlord’s notice to quit to arbitration, but if the arbitrator upholds it then the landlord will be entitled to possession. As noted above, the tribunal has no jurisdiction over notices to quit based on Form 3 notices to remedy.

7.117 In Lancashire CC v Taylor²⁵⁵ the tenant was served a notice to remedy in Form 3. He was found at arbitration on the subsequent notice to quit to be in breach of the user covenant in the tenancy agreement prohibiting non-agricultural use.²⁵⁶ His claim that the differential treatment of tenants under the Form 2 and 3 procedures infringed Art 14 of the European Convention of Human Rights was rejected in the court of appeal. The court held that the 1986 Act does not distinguish between the two classes of tenant on the basis of their property or status – a form of discrimination prohibited by Art 14. Rather it distinguishes between tenants on the basis of the type of covenant that they are alleged not to have observed.²⁵⁷ Even were the provisions of the Convention to have been engaged, the different treatment of the two types of tenant was objectively justified. The protection of tenants under the Form 2 procedure was aimed at protecting tenants who have spent large sums of money on the upkeep of their holdings and then face notice to quit for a failure to do further excessive work.²⁵⁸ The provision is intended to prevent covenants to maintain from becoming engines of oppression. By way of contrast, where there is a covenant to improve the holding, or to use the holding for specified purposes only, the tenant will be able to quantify the obligation in advance in terms of its prospective cost, and it can be accommodated in a discounted rent calculation. Breaches of user covenants and the like can be identified, contested if no breach is claimed to have occurred, and remedied if remediable at relatively little cost. They do not, therefore, carry the same risk of oppression as a covenant to maintain the holding. The court of appeal therefore concluded that the allocation of differential levels of protection to the different classes of tenant in Case D was not unreasonable, and a declaration of incompatibility was refused.