Loveless v. Fitzgerald

Loveless v. Fitzgerald

An assignment by one partner to the other without the lessor's written consent breaches a covenant not to assign; because the lease made performance of covenants through the original term a condition precedent to renewal, the breach (even though after notice) forfeited the right to renewal — appeal dismissed and...

Source-derived case information.

Citation
(1909) 42 SCR 254
Parties
Appellant / Defendant: Thomas A. Loveless; Respondents / Plaintiffs: Frederick Ardiel Fitzgerald and Others
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
5 October 1909
Procedural Posture
Civil Appeal — Landlord and Tenant (lease Renewal; Covenant Not to Assign) / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed with costs; judgment of the Court of Appeal for Ontario and trial court affirmed.
Legal Topics
Lease Renewal, Covenant Not to Assign, Forfeiture, Assignment Between Partners, Notice Requirement
Source Language
english
Property Law Landlord and Tenant Contract Partnership Law Lease Renewal Covenant Not to Assign Forfeiture Assignment Between Partners +1 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Thomas A. Loveless

Appellant / Defendant

Frederick Ardiel Fitzgerald and Others

Respondents / Plaintiffs

Procedural Posture

Civil Appeal — Landlord and Tenant (lease Renewal; Covenant Not to Assign) / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether an assignment by one partner of his interest in a lease to his co‑partner without the lessor's written consent breaches a covenant not to assign or sublet without leave
  2. 2 Whether such a breach, occurring after notice for renewal was given, forfeits the lessees' contractual right to renewal
  3. 3 Whether acceptance of rent after the assignment constituted a waiver of the breach

Ratio Decidendi

An assignment by one partner to the other without the lessor's written consent breaches a covenant not to assign; because the lease made performance of covenants through the original term a condition precedent to renewal, the breach (even though after notice) forfeited the right to renewal — appeal dismissed and possession awarded to landlords.

Court Disposition

Appeal dismissed with costs; judgment of the Court of Appeal for Ontario and trial court affirmed.

Orders

  • Appeal dismissed with costs
  • Judgment affirming plaintiffs' right to possession of the premises (ejectment of appellant)