Do you know the different legal consequences of these two lease provisions: 


‘Not to use the premises as...’, or 


‘The premises shall not be used as...’. 


The answer is that the former is expressed ‘actively’ (‘not to use the premises’) and can only be broken by the person who gave the covenant (eg T). The latter phrase, however, is expressed ‘passively’ (‘the premises shall not be used’) and will be broken if anyone uses the premises for that prohibited purpose. 


Typically, the distinction will be important in deciding whether or not a sub-T is bound by the restriction in the head lease. If the former wording is used, the sub-T will not be bound; if the latter wording is used, then the sub-T will be bound (and T will be liable for that breach). In fact, a belt-and-braces approach with a passive covenant, which is therefore intended to bind people other than T, is to make that clear by having a general provision in the lease that an obligation not to do an act includes an obligation not to permit or suffer the act to be done, and to use reasonable endeavours to prevent the act from being done by another person. 


Also relevant in this context is s79 LPA 1925 which says that any covenant is ‘deemed to be made by the covenantor on behalf of himself, his successors in title, and the persons deriving title under him’ unless a ‘contrary intention’ is expressed. There need be no specific provision saying that s79 does not apply, since that can be implied from the other wording used in the documentation. For instance, if it clear from the lease that the covenant was not intended to apply to the sub-Ts of T then s79 will not apply. 


Just how all of this can work in practice is illustrated by a recent case where T covenanted ‘not to use the demised premises... for the parking of motor vehicles’. This was therefore an ‘active’ covenant with the result being that it would normally apply to T only (meaning that T would not be liable for the parking of a sub-T). On the facts, s79 did not overwrite that finding; and there were other covenants in the lease which were worded ‘not to permit’ certain acts to be done, whereas the parking covenant did not, and this showed a sufficient ‘contrary intention’ so that s79 did not apply. 


The real point to appreciate is that there is a difference between ‘not to use’ and ‘shall not be used’. See commentary on Roadside Group Ltd v Zara Commercial Ltd [2010] EWHC 1950 (Ch) (access free at www.practicalconveyancing.co.uk) in [2010] NLJ 1410. Also, Dechert On Point, Autumn 2010.