nature of the right i.e. immovability until statutory conditions
LANDLORD & TENANT
are met.
THE RELATIONSHIP OF LANDLORD &TENANT
The relationship of landlord and tenant arises where a person who
8.
has an estate in real property grants or is deemed to have granted to
Tenancies at will and at sufferance are not real tenancies,
although the relationship of landlord and tenant exists.
another an estate which is less than that of the grantor.
Creation of the Relationship
A lease is an estate less than the freehold so there is always a
A tenancy may arise in one of three ways:
reversion on a lease. The relationship is also a contractual one;
1.
It may be created by an express or implied agreement between
thus the creation of such a relationship will be affected by the
the parties. This may be by way of a simple oral agreement
fundamental requirements of a contract as to capacity, offer and
with the most elementary terms, i.e. the parties, the property,
acceptance, misrepresentation, privity etc. Now it may even be
the rent and the period. Or it may be a formal document by
possible for a contract of landlord and tenant to be frustrated, at
way of a deed, which runs into many pages and which deals
least in theory.
with every possible eventuality from responsibility for
cleaning windows to liability in the event of destruction, by
Subject to any statutory provisions, the rights and obligations of the
parties will be only those, which the parties have agreed on. And
hurricane, aircraft or civil commotion.
2.
It may be created by attornment i.e. an acknowledgement by
in the absence of specific provision in the agreement, will be
the tenant that s/he is in fact a tenant e.g. where a mortgagee
determined with reference to practice and common law e.g. a
forecloses under a mortgage and the tenant acknowledges the
landlord cannot unreasonably withhold consent even without
mortgagee as the landlord (cf. Dorchester dispute where the
statutory provision setting this out.
tenants are likely to have to take out inter-pleader
proceedings).
However, because this contract confers on the tenant an estate in
3.
It may be created by statute, e.g. where a dependent of the
land, which may exist at law or in equity, it is a unique form of
tenant on the tenant’s death becomes a tenant by express
contract e.g. the court of equity may grant relief in forfeiture, even
statutory provision.
though there is no such common law right.
Two stages to the creation of a lease:
Thus a lease arises where, a landlord confers on a tenant by way
1st – the agreement for a lease – By an agreement for a lease the
of a contract, the right to exclusive possession the land. This may
parties agree that the landlord will grant and the tenant will take a
be for a period which is either subject to a definite term, or can be
lease.
made subject to a definite term by either party.
2nd – the grant of a lease – the subsequent granting of a lease is the
realisation of the lease previously agreed.
Consequences of an Estate being Created
1.
2.
The relationship is one of tenure and therefore the covenants
However in law, it is not necessary that there be both an agreement
that touch and concern the land and run with the land will bind
for a lease and the lease itself. Often the parties will proceed to the
the assignees of the lease and of the reversion.
lease without a written agreement. More often they will not
Payment of rent is deemed to be for the land and arising from
proceed beyond the agreement; i.e. is to say having agreed the
this is the right to distress i.e. the right of the landlord to levy
tenant will enter into possession of the premises. The legal effects
distress on the goods of the tenant to recover rent. The right to
of the two steps are however, different.
distrain on the goods of a tenant is no longer available in
Jamaica. Since 1978 (Joke on Mushette LLB)
3.
The tenant is estopped from denying the landlord’s title and
vice versa. There is no requirement in law for the landlord to
prove title, but this can be made a term of the agreement to
lease.
4.
There can exist concurrent interests on the same land i.e.
freehold and leasehold.
5.
The duration of the tenure must be certain or capable of being
made certain before the commencement. Lace v Chantler
and Prudential Assurance v London Residuary Body.
6.
Sub-tenancies can be created and a tenant can assign a lease
unless otherwise stated in the lease.
7.
The estate ends on the expiry of the contract. A statutory
tenant has no estate in the land because of the purely statutory
Landlord & Tenant
Page 1 of 47
2
AGREEMENT FOR A LEASE
Tiverton Estates Ltd v Wearwell [A document setting out the
-
By this, the parties agree that the landlord shall grant and the
terms of the alleged contract which was expressed to be, or
tenant shall take a lease.
formed part of correspondence expressed to be “subject to
Often a document entitled a tenancy agreement is often not an
contract” would not constitute a sufficient memorandum in
agreement for a lease at all but an actual lease.
writing of the agreement.]
-
-
Whether there is a binding agreement for a lease or not is to be
decided by reference to the ordinary rules of the law of
Essentials for memorandum in writing to establish an
contract –
agreement for a lease:
Rossiter v Miller. The action was brought to compel the
1. It must be in writing Burgess v Cox; North v Loomes
specific performance by the respondent of an agreement to
2. It must contain the material terms of the agreement i.e.
purchase plots of land belonging to the appellants, and the

A full description of the parties
main question was whether letters which had passed between

The consideration i.e. the rent and any premium
the agent of the vendors and the respondent constituted a

A description of the property adequate for its clear
binding contract within the meaning of the Statute of Frauds.
identification

Held: It is a necessary part of a claimant’s case to show that
-
-
the 2 parties had come to a final and complete agreement. If
Harvey v Pratt [Was not a valid agreement, as the
not there was no contract. So long as the parties are only in
document did not specify any date from which the lease
negotiation either may retract. Though the parties may have
was to commence. Therefore it failed for certainty.]
agreed on all the cardinal points, if some particular essential
Jaigobin v Dias [The plaintiff was held to be in a position
to the agreement still remains to be settled afterwards, there is
of a person who had a mere permission or licence to go on
no contract.
the land because the duration of the lease, not being stated,
In the case of an agreement for a lease, the offer will be to let
the document was not effective as an agreement for a
or demise the land
lease,]
(i)
at a certain rent
Chew v Richmond [Memo was insufficient, as it
(ii)
for a certain period and
contained no provisions with regard to the commencing
(iii)
from a certain date.
date of the term or with respect to the rent, the
(iv)
Under the best rent possible without taking a fine
consideration.]
A formal written document is not necessary to bind the parties
Knight v Pratt [Held: the agreement lacked 3 of the
and the agreement may be formed equally by word of mouth
requisites of a lease: (i) a definite or ascertainable period;
or by an exchange of correspondence.
(ii) a definite thing demised; (iii) exclusive possession.]
However, while a
formal written agreement is not necessary, it has the practical
4.
advantage of reducing possible disputes between the parties
because it will be clear that there is an agreement upon
-
-
The period of the tenancy:
It must be signed by the parties especially the party to be
charged. Statute of Frauds
5.
It must contain an express or implied recognition that a
specified terms.
contract in fact had been entered into. Tiverton Estates v
Although an agreement for a lease need not be in writing to be
Wearwell
valid it might nevertheless be unenforceable because of the
Analogous situation of contract for sale of land where the
provisions of the Statute of Frauds or similar successor
purported agreement contained the phrase “subject to
provisions. The object of that statute was to prevent fraudulent
contract”. Held to be insufficient memorandum even when
practices in relation to various sales including the disposition
read in conjunction with other documents.
of land. The difficulty facing the courts at that time was that
In practice a memorandum may be derived from a letter setting
in the absence of evidence such as a document the parties were
out the terms or a receipt or even a note of a conversation or
willing to perjure themselves in order to establish or avoid an
from several documents, provided there is some link between
oral contract. The Statute therefore required that the party
them.
seeing to enforce an agreement had to produce some evidence
Timmins v Moreland Street Property Co. Limited:
in writing of the agreement signed by the other party, i.e. “the
Analogous situation of a contract for sale. Purchasers argued
party to the charge”.
that the documents, a cheque and a receipt, were insufficient
If the parties do not yet wish to bind themselves it is
to constitute a memorandum because they omitted a material
sometimes the practice to add the words “subject to contract”
term, property subject to a lease. Held: the omission to refer
to their negotiations and correspondence. If the agreement is
to the lease did not vitiate the memorandum.
“subject to contract” there is a risk that at the end of the day,
either side may back out: Derby & Co. Ltd. v ITC Pension
Trust
LANDLORD & TENANT 2003-04
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3

Doctrine of Part Performance
Taking possession of the premises by one party with
Where there is an oral agreement for a lease but there is no
the consent of the other:
memorandum in writing, the agreement may still be enforceable if
Morphett v Jones:: The Defendant J agreed to lease
there are acts of part performance of the agreement.
land to the Plaintiff M.
-
In order to establish this the parties seeking to enforce the
plaintiff to enter into possession, which later took
agreement must show:
place. Held A party who has; permitted another to
He then authorised the

that there is a binding agreement
perform acts on the faith of an agreement is not

there have been sufficient acts of part performance
allowed to insist that the agreement is bad and that

those acts of part performance indicate the existence of an
he is entitled to treat acts partly performing it as if
agreement and are consistent with the agreement alleged,
they never existed. Between landlord and tenant
i.e. referable to the agreement.
admission into possession, having unequivocal
The plaintiff must show that he had acted to his detriment
reference to the contract, has always been considered
and that the acts in question were such as to indicate on a
an act of part performance.


balance of probabilities that they had been performed in
reliance on a contract with the defendant and were
to be leased at the specific instruction/suggestion of
consistent with the contract alleged:
the other party:
Steadman v Steadman: Husband and wife agreed to
Rawlinson v Ames [The defendant frequently visited
transfer of her interest in house to him for a specified sum,
the flat and made suggestions for further alterations
for discharge of her maintenance proceedings against him
which were carried out by the plaintiff at her request.
for herself and her child and husband to pay arrears in
When the defendant repudiated the contract the
maintenance. Agreement confirmed by court and husband
plaintiff sued for specific performance. Held: the acts
performed as promised. On an application by the wife to
done at the request of the defendant were acts of part
repudiate
performance taking the case out of the Statute of
the
agreement
because
of
insufficient
memorandum in writing and no act of part performance,
Fraud]

Held: the husband’s payment plus actions were sufficient.

Carrying out of repairs and alterations to the premises
The payment of rent in advance may constitute an act
It would be inequitable for wife to rely on defence.
of part performance:
The courts have sometimes said that a condition is that it
overruling Chaproniere v Lambert and Maddison
would be a fraud for the defendant to rely upon the absence
v Alderson

of the contract being in writing: Brough v Nettleton
Steadman v Steadman
The payment of and acceptance of a higher rent
where the plaintiff was a previous tenant who merely
The principle underlying the doctrine of part performance is that
continued in possession:
where 1 party to an agreement has carried out whether in whole or
Miller & Aldworth Ltd v Sharp: The landlord
in part, the contract, it would be inequitable to allow the other party
verbally agreed with tenant to grant a lease at an
to rely on the Statute of Frauds.
increased rent. Held: the payment of the extra rent
Wakeham v Mackenzie [Woman moved out of her house and into
was a sufficient part performance to take the case out
the deceased’s to take care of him because he promised to leave her
of the Statute of Frauds.
the house and contents when he died. Held: sufficient acts of part
performance that must be and were referable to some contract.]
Remedies for non-performance
Cf. Maddison v Alderson (HL) [Woman worked as deceased’s
If either party refuses to go ahead with the lease agreement the
housekeeper without pay for many years because he promised
other party has two remedies
orally to leave her a life estate in is will. Held: her actions did not
1.
Specific performance – an equitable remedy by which the
unequivocally point to a contract.] Lord Selbourne also said that
court orders that the party shall perform his/her side of the
part payment of purchase money is not enough as the payment of
agreement.
money is an equivocal act in the absence of parol evidence

indicative of a contract concerning land.
However the House of Lords, in Steadman v Steadman,
subsequently said that there was no general rule that the payment
of money could never constitute part performance.
Because of its equitable nature specific performance is a
discretionary remedy.

In exercising its discretion the court has regard to a
number of matters:
(i)
The conduct of the parties e.g. if the party seeking
specific performance is guilty of bad conduct or
-
-
If there are sufficient acts of part performance, the court will
has delayed unreasonably in enforcing his rights
grant specific performance.
the court is not likely to grant the decree.
Examples:
Pillersdorf v Denny 1975 10 B’dos LR 30
Plaintiff sought specific performance of a contract
LANDLORD & TENANT 2003-04
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4
for sale of land. The land purchase was delayed
because of delay in getting planning permission.
Held: contract was conditional on the permission.
Without the condition precedent there was no right
of performance on either side.
(ii)
whether the order would cause undue hardship;
thus the court will not grant specific performance
where it would result in a course of action not
permitted by the lease held by the landlord:
Warmington
v
Miller
[Defendant’s
lease
contained covenant against assignment or parting
with possession. Court would not enforce an oral
agreement for the defendant to grant a lease to
the plaintiff. Held: the plaintiff was not entitled to
specific performance since the court would not
order the defendant to do that which he could not
do under the terms of his lease under which he
held the premises and which, if he did, would
expose him to proceedings for forfeiture.]
2.
Damages – Where there is non-performance by the landlord
due to a defective title, the tenant cannot recover damages for
loss of his bargain but only to the actual expense that he has
been put.
If, however, landlord’s default is wilful then tenant can recover
damages directly resulting from the default.
Note: In Broughton v Snook it was held that the first step is to
prove the existence of an oral contract. If there was evidence of
such a contract then the plaintiff can enforce the contract unless
the defendant sets up the Statute of Frauds. If this is done then the
plaintiff relies on the doctrine of part performance.
LANDLORD & TENANT 2003-04
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5
LEASES
Lack of Formalities
A lease is created when the landlord grants to the tenant the right of
Prior to the Judicature Act 1873 a tenant under an informal lease
exclusive possession of land or buildings for a definite term or for a
would have different rights depending on whether the matter was
period which can be made definite by either party and if for more
before the courts of law or equity. The Judicature Act, applicable
than 3 years or otherwise provided by statute complies with certain
in all Commonwealth Caribbean jurisdictions, resolved this
formalities.
conflict by providing that where there was a conflict between law
and equity the equitable principles apply Walsh v Lonsdale.
CHARACTERISTICS OF LEASES
1.
-
Thus a lease which is void at law because it fails to comply
Exclusive possession
with the requirements of formality, if sufficiently evidenced in
-
Definition: The right to control the demised property and
writing or supported by acts of part performance is treated by
to exclude all persons from it including the landlord. If
equity as an agreement for a lease for which specific
landlord wishes to enter, he must specifically reserve the
performance might be granted.
right to do so.
-
-
Further where the tenant has the right to apply for specific
Where a person is granted the right to use premises
performance the lease will be deemed to be granted whether or
without the right to exclusive possession, the grant is a
not the tenant asserts specific performance.
licence and not a lease. Although the right to exclusive
Nixon v Richards [Held: In the absence of a special
possession does not necessarily preclude the existence of a
agreement, a purchaser of land let into possession thereof
licence. Street v Mountford
under a contract of sale but who has not paid the purchase
2.
Definite period
money and to whom no conveyance has been executed is a
-
This requirement is not always free of difficulty. In the vast
tenant at will to his vendor. If however, purchase money paid
majority of cases the period is clear and definite. Occasionally
then equitable agreement for a lease arises.]
however, persons enter into unusual agreements that make the
-
Further, if tenant pays rent, a periodic tenancy is created.
period of the tenancy uncertain e.g. a demise “until the river
-
As a result of Walsh v Lonsdale it is often said that an
changes its course”. This kind of situation, however, should
agreement for a lease is as good as a lease and generally
not be confused with the situation where a grant is made for a
speaking this is so. But there are instances where an equitable
definite period, but there is provision for termination at an
lease is not as good as an actual lease.
earlier time upon the occurrence of a specific event e.g. a
diplomat’s period of service in a jurisdiction until recalled or
Why an equitable lease is not as good as an actual lease
declared persona non grata or e.g. a person working in the
-
jurisdiction on contract, if their contract is terminated earlier.
Equitable lease dependent on equitable remedy of specific
performance which is discretionary. Thus a tenant guilty of
breaches under the lease would not be granted this remedy.
FORMALITIES:
Coatsworth v Johnson: The plaintiff entered into possession
At common law a lease can be validly created by a purely oral
of land under an agreement for a lease, but no rent was paid
transaction.
and a covenant to cultivate the land was broken.
Nevertheless there are statutory provisions which
The
require that certain formalities be established.
defendant gave notice to quit and turned the plaintiff out of
1.
Except in the case of Barbados, all leases of unregistered land
possession. On an action for damages for trespass it was held
over 3 years must be by deed i.e. under seal. In the case of
the plaintiff would not have a remedy because he was only a
Barbados, leases of unregistered land for more than one year
tenant at will. He could not have sought specific performance
need only be created by an instrument in writing.
because of his breach of covenant.
2.
3.
Once however a lease has been validly created, whether oral or
-
En equitable lease not enforceable against 3rd parties acting in
written, it must be assigned by deed or by transfer for there to
good faith and without notice, especially the bona fide
be a valid legal assignment.
purchaser for value without notice i.e. “equity’s darling”.
In the case of registered land, a lease for more than 2 years,
Metcalfe v Edgehill
except in the case of Jamaica, where it is one year, must be in
writing and noted by the Registrar of Titles. S. 70
Creation of a lease:
Registration of Titles Act. The various registered land
A lease may therefore be validly created as follows:
statutes provide a pro forma example of a basic lease that can
4.
(1) If it is for registered land and more than a year, it must be in
be used as is or modified to suit the particular circumstances.
writing: See however, section 70 Registration of Titles Act
With the exception of Barbados, leases for more than 21 years
“…the proprietor of any estate in land under the operation of
are entitled to be evidenced by way of a certificate of lease as
this Act shall, except in case of fraud, hold the same as the
distinct from the lease merely being endorsed on the title or
same may be described or identified in the certificate of
lodged in the registry or titles office
title…”
LANDLORD & TENANT 2003-04
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6
(2) If it is for less than 3 years and it is unregistered land – may be
made orally or in writing or by deed
(3) If it is for more than 3 years and is unregistered land it must be
by deed.
(4) If it is for more than 3 years and is made orally but there are
sufficient acts of part performance – equitable lease
(5) If it is for more than 3 years and there is sufficient
memorandum in writing – equitable lease
(6) If it falls under (4) or (5), but tenant has been guilty of bad
conduct or 3rd party rights will be affected which will prevent
the grant of specific performance there will be no equitable
lease
(7) If it is for more than 3 years and no sufficient memo or acts of
part performance, specific performance will not be granted
BUT if tenant enters into possession and pays rent – periodic
tenancy will arise.
LANDLORD & TENANT 2003-04
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7
LEASES AND LICENCES
Thereafter the position was that even if exclusive
-
The distinction between a lease and a licence is very important
possession was granted you had to consider all the other
today particularly in jurisdictions with rent restriction
relevant factors and decide whether these pointed to a
legislation that is designed primarily to protect tenants against
lease or not. It is arguable today that some of these are
exploitation by landlords. Rent Restriction Act applies only
still relevant in certain circumstances, the most important
to tenancies and not licences.
of which is the nature of the relationship between the
Thus in recent times attorneys, particularly in Jamaica and
parties.
-
Trinidad and Tobago, have been called on to address
II.
agreements purporting to create licences meant to avoid the
-
-
Whether the terms of the agreement are such as are
normally found in a lease e.g. covenant to repair:
effect of legislation for the protection of tenants.
Addiscombe Estates v Crabbe The trustees of a tennis club
In England such a practice has been taking place for a long
took occupation of tennis courts and a club house the
time now as evidenced by the number of decisions in this area.
activities of the club were held to be business purposes.
More recently in Street v Mountford the court had to
The agreement which was termed a licence contained
construe a document described as a licence to determine
covenants of insurance, delivery of premises, and quiet
whether in fact it was what it said it was. The House of Lords
enjoyment. Held: tenancy.
held that it was in fact a tenancy agreement. Since Street v
III.
Relationship between the parties - if arms length or
Mountford there have been a number of decisions which have
commercial. The latter suggests a lease, whereas if the
applied that case, including in the Caribbean.
relationship
Ramnarace v Lutchmann: plaintiff occupied land on
friendship or between family then suggests licence:
understanding she could live there until she could afford to
Ramnarace v Lutchman;
is
personal,
employer-employee,
long
buy it. She was served a notice to quit but it was not enforced.
Romany v Romany: A mother allowed her son and his
She claimed a declaration of tenancy. PC held that she had
wife to remain on premises after their marriage until they
entered the land as a tenant at will, not a licensee, because of
found alternative accommodation. Court found that a
the agreement to eventually sell. Under Trinidadian legislation
licence existed.
the notices to quit without more were insufficient to stop time
In family situations where one member helps another in a
running on adverse possession, extinguishing the respondent’s
period of difficulty over accommodation there is usually no
title.
intention to create legal relations so that there is no tenancy
at will but merely a licence. NB: The fact that the mother
DISTINCTION BETWEEN A LEASE AND A LICENCE
repeatedly protested their possession after a while revoked
-
In order to determine whether the relationship between the
the licence and her mere inaction after every protest did not
parties is that of landlord and tenant or licensor it is necessary
serve to extend the licence.
to consider a number of factors
The general rule is that a tenancy-at-will exists when a
I.
Primary consideration: whether exclusive possession has
person occupies the land of another on the understanding
been granted to the occupiers. If it is has not there cannot
that he may go when he likes and that the owner may
be a lease.
terminate his interest at any time. To distinguish this
At one time the law was that if exclusive possession had
tenancy from a licence, Court looks to the intention, i.e.
been granted then this was conclusive of a lease. But this
whether the occupier was intended to have an interest in
was later modified.
the land or merely a personal privilege without any such
In Street v Mountford Lord
Templeman said that where exclusive possession is
interest.]
granted a tenancy arises unless there are special
The more formal the agreement the more likely that is a
circumstances which negative the presumption. Then it
lease
may be necessary to consider the intention of the parties.
IV.
Amount of money involved – whether commercial rate
Isaac v Hotel de Paris: The respondent let the appellant
V.
Whether the occupant has previously occupied the
into occupation of a separate property in order for the
premises or is being let in de novo:
appellant to run a bar there on behalf of the respondent.
Dean v Mahabir [Held: where exclusive possession is
They later signed an agreement, “subject to contract”
given to a new occupant, it is almost decisive of the
involving a share swap for a lease agreement.
creation
The
of
a
tenancy
so
that
special
agreement was never executed and the respondent gave
circumstances/conduct must be shown in order to negative
the appellant notice to quite. He remained in occupation
a tenancy. As there were no special circumstances here,
paying expenses and taking profits. Held by the PC: the
the appellant was allowed to live rent free in the
circumstances in which the appellant was allowed to
respondent’s dwelling house for a period while the
occupy show he was never intended to be a tenant, and
former’s house was being constructed it was a tenancy
that he was aware of this.
LANDLORD & TENANT 2003-04
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8
VI.
Sylvestre v Cyrus: Cyrus, the tenant of a house moved out
condition and therefore could not expect to have the
taking her telephone and electric meter and let Sylvestre
property for life or as long as he wished. Condition that the
into exclusive possession for payment of a premium and at
defendant should “command respect” not specifically met.
a monthly rent. When Cyrus moved back in two years

later, Sylvestre brought an action in trespass. The court
However, the licence is revocable subject to the limitation
held that in the absence of special circumstances the
that the licensee must be given a reasonable time to vacate
exclusive possession was sufficient to establish a tenancy.
the premises:
the capacity of the grantor to grant the tenancy:
Singh v Singh [Licensee could maintain an action for
Spencer v Esso Standard Oil [Arrangement between
trespass because he was given no time at all in which to
parties that the respondent company would erect a service
cut his rice and quit the land. Here the licensor had
station and the appellant should manage it accordance
entered onto the land and reaped the licensee’s crops.]
with various terms and restrictions. Held: Licence. The
Where the licensee was not given reasonable time in which
respondent had sued for “rent due” but he should have
to vacate the premises, then the court will not grant the
sued for damages for use and occupation of its station,
licensor an injunction to prevent the licensee from
which ran from the time when the appellant should have
occupying it: Crawford v Ramnarine
yielded up the premises under a notice to do so.]
VII.
II.
Licence coupled with an interest – such as the right to
Whether a joint tenancy exists
enter land and enjoy an incorporeal heridatement e.g.
AG Securities v Vaughan [4 separate agreements
easement or profits a prendre. Here, the licensor cannot
granted on 4 different dates to 4 different persons where
revoke the licence if the licensee is thereby prevented
each was granted the exclusive right to use a 4 bedroom
from exploiting the interest which the licensor has
flat in common with 3 other persons who had or who
granted: Binyon v Evans, Cherrington v Hoare
might from time to time be granted the same right. Each
III.
Contractual licence – any licence that is not coupled with
agreement also differed in the amount payable. Held: not
a grant but which is supported by valuable consideration
a joint tenancy. If this were so, then on the death of 1
e.g. right to enter a cinema. This is terminable upon the
occupant the remaining three would be entitled to joint
contractual terms. If no express terms are discoverable
and exclusive possession and could exclude a 4 th person
then reasonable notice is implied. Contractual licences are
nominated by the grantor. This was not the case.]
by far the most important types of licences in matters
Cf. Antoniades v Villiers [L, by separate but identical
relating to landlord and tenant law, because property
agreements entered into contemporaneously with a
owners sometimes in trying to avoid the consequences of
couple, granted a “licence” to occupy flats whereby it
rent restriction legislation attempt to create contractual
was provided that the rooms were to be used in common
licences. These are governed by the law of contract only.
with L and such other licensees or invitees that L may
IV.
Licence by estoppel: Clarke v Kellarie [Plaintiff assured
permit. Held: was a joint tenancy – the agreements were
the defendant that he had use of the premises until his
interdependent as both would have been signed or neither.
death. Defendant erected buildings and the Plaintiff
Was clear from negotiations that L did not intend to share
acquiesced. Held: plaintiff estopped from defeating
occupation or to authorise any other person to deprive the
defendant’s expectations by dispossessing him of the
parties of exclusive possession. However the tenancy
property.]
could have been converted into a licence as soon as L
exercised his power to share occupation.]
Licences
A licence does not create any estate in the property (just like a
tenancy at will) Thomas v Sorrel {liquor licence case]
Types of licences:
I.
Bare licence – Granted without valuable consideration so
that it does not even amount to a contract. Cherrington v
Hoare (Belizean case)
Plaintiff purchased lot from D’s father with D living in
smaller of 2 houses on the lot. P claimed D was a tenantat-will and claimed possession following notice to quit,
while D claimed proprietary estoppel granting him
tenancy-for-life. Held: D only held a bare licence, despite
his expenditure on the house, he had not met a prior
LANDLORD & TENANT 2003-04
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9
-
Licence Arrangements
1) Employees –
-
the same house as the occupier. A lodger who has no separate
May involve an employee such as a caretaker, farm
overseer, or university warden. It is a service licence
apartment is generally a licensee.
-
where occupation is for the better performance of
employee’s duties.
-
possession in the room then he will generally be a tenant.
employee’s contract of employment or implied from the
However, if it was intended that he should merely have
circumstances of his employment.
personal permission to occupy the room he will generally be a
R v Spurrell [The essential question was whether or not
licensee.
-
Lord Templeman in illustrating the meaning of exclusive
his services, or whether the occupation was subservient to
possession in Street v Mountford explained the lodger as
and necessary to the service. If the occupation is not
against the tenant in the following way, “In the case of
necessary to the service, then the fact that the advantage
residential accommodation there is no difficulty in deciding
of the occupation is part of the remuneration for the
whether the grant confers exclusive possession. An occupier
service will not render the occupation less an occupation
of residential accommodation at a rent is either a lodger or a
qua tenant.]
tenant.
The occupier is a lodger if the landlord provides
Phillips
attendance or services that require the landlord or his servants
[Respondent lived at his employer’s premises. He agreed
to exercise unrestricted access to and use of the premises. A
that either he or someone would always be there to take
lodger is entitled to live in the premises but cannot call the
orders and answer messages and enquiries for the
place his own.
employer. Held: the substance of the agreement was for
accommodation is granted for a term at a rent with exclusive
the respondent to occupy in order to perform his services
possession the landlord providing neither attendance nor
in part in those premises.
services the grant is a tenancy. Any express reservation to the
(Funeral
Furnishers)
Ltd
v
Thus not a tenancy but a
If on the other hand residential
service occupancy.]
landlord of limited rights to enter and view the state of the
Langley v Appleby [Held: a policeman occupied special
premises and to repair and maintain the premises only serves
housing not as tenant but as a licensee not because it was
to emphasise the fact that the grantee is entitled to exclusive
essential to the performance of his duties, but because it
possession and is a tenant.”
was an essential term of his employment that he should
-
Landlords wishing to avoid the statutory protection offered to
occupy the premises. Failure to do so would have meant
tenants have attempted to draft lodging agreements.
termination.
2 such agreements came before the court in Crancour Ltd v
An employee may however be a service tenant, in which
DaSilvaesa: The UK Court of Appeal held that the following
case he would be in the same position as a legal tenant.
variables pointed to lodgings:
The test to distinguish the two categories is whether the
1) fact that occupant had right to the room only during a
employee is required to occupy the premises for the better
performance of his duties as an employee.
Torbett v
certain time;
2) provision of attendance and services meant unrestricted
access was reserved and exclusive possession destroyed;
Faulkner
-
If it is intended that the occupier should have exclusive
The requirement to occupy may be contained in the
Thompsons
-
Whether the occupier of a single room in a house is a
licensee/tenant is dependent on the quality of the occupancy.
–
the servant simply occupied as part of remuneration for
-
The word lodger is used in cases where the landlord lives in
Whether the test has been met must always be determined
3) right was reserved whereby occupant would have to move
by a consideration of the substance of the agreement and
out of his flat into any other of comparable size in the
not by use of particular terms.
building.]
Glasgow City
Corporation v Johnstone
The courts lean in favour of tenancy especially because of
In many cases if the right to occupy is not required for the
protection offered by Rent Restriction Acts.
better performance of the employee’s duties, but is in
reality a part of the remuneration for his services then a
tenancy is prima facie created.
-
The relationship of licensor/licensee terminates upon the
entering of an agreement between the parties to purchase
the premises and the licensee thereafter becomes a tenant
at will: Bertram Palmer v James
2) Lodgers/Boarders
LANDLORD & TENANT 2003-04
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10
TYPES OF TENANCIES
-
1) Where a lease takes effect in the future it is called a
The important thing to remember with respect to periodic
tenancies is that the parties must avoid any provision that is
reversionary or future lease.
repugnant to the nature of such a tenancy and would therefore
make it void and unenforceable i.e. either party restricting his
2) A lease may also be granted for a term that commences before
right to terminate. If the periodic tenancy is not capable of
a previous lease expires or is otherwise determined. This type
termination it cannot be said to be for a definable period and
of lease is known as a concurrent lease. Such a lease operates
therefore cannot be a tenancy at all.
as a lease of the reversion and has the effect of substituting the
Centaploy Ltd. v Matlodge; A term in a periodic lease which
new tenant of the reversion as landlord in relation to the
permitted only the tenant to terminate the lease was held to be
existing lease as long as the 2 interests subsist concurrently.
void by the CA
3) Tenancy for a fixed term
5) Yearly tenancies
-
-
-
-
The simplest kind of term is a lease for a fixed period, whether
a week, month or a number of years. It may be made to begin
agreement or by implication and may be determined at the end
immediately or at some time in the future or at a date earlier
of the first or any subsequent year by service of a valid notice
than that of its execution. The term must however be certain.
to quit.
The test of certainty will be satisfied if the period is capable of
-
tenancy from year to year” or that “the tenant shall be a yearly
A lease for a fixed term comes to an end automatically without
tenant”, or words of similar effect. However a tenancy for “1
notice when the term expires. It should be noted however that
year and so on from year to year” is a tenancy for a fixed term
in practice, notice is usually given with respect to property
of 1 year followed by a yearly term. Such a tenancy cannot be
subject to rent restriction legislation when let for a fixed term.
terminated before the end of the 2nd year.
-
statutory tenant, the statutory provisions require that notice be
a)
but not as a licensee and not for an agreed period and
the more recent decisions of Crampard v Thomas and
rent is paid and accepted and is expressed to be or
Dabdoub v Saba have overruled Yap Young. Nevertheless
calculated as a yearly sum
b) A tenant holds over after the expiry of a fixed term
Fixed term tenancies may be made terminable before the
tenancy as a tenant at will or at sufferance but
expiration of the term on
subsequently pays or agrees to pay rent on the same

notice being given by one party, or the other, to
terms as under the expired lease in so far as they are
terminate the tenancy at given intervals during its
not inconsistent with a yearly tenancy.
currency i.e. a break clause.

c)
-
The lease granted to the tenant is in fact void because
the happening of some specified event e.g. the tenant
it was not made by deed or in writing, as the case may
ceasing to reside on the premises.
be. In such instances if the tenant can show that he
Fixed term leases raise difficulties particularly when the term
has in fact entered into possession of the premises and
is very long. There is a need to moderate that but not by
has paid a yearly rent he becomes a tenant from year
converting it to a monthly tenancy.
to year upon such terms of the lease agreement as are
4) Periodic tenancies
-
A person occupied land with the owner’s permission
to commercial lettings in Yap Young v Reynolds. However
the practice continues.
-
A yearly tenancy will arise by implication whenever the
following conditions are satisfied:
given. Rowe J was [persuaded to this view at least in respect
-
A yearly tenancy may be created by the parties agreeing to “a
being rendered certain before the lease takes effect.
The usual reason given is that if the tenant holds over as a
-
Tenancies from year to year may be created by express
applicable to a yearly tenancy.
These continue automatically from period to period until they
d) The tenant has entered into possession and paid part
are determined by a valid notice to quit given by one party to
of a yearly rent but there is nothing in writing. The
the other. A periodic tenancy therefore differs fundamentally
mere fact of payment of the rent and acceptance of it
from a fixed term tenancy in that in the latter the total duration
will, if not otherwise explained be admission of the
is fixed from the outset.
fact that a tenancy exists.
The usual periods for periodic tenancies are a week or month
evidence to the contrary, this would be deemed to be
or quarter or year, but any period may be chosen.
a tenancy from year to year.
Whatever period is chosen, that is the minimum duration of the
-
In the absence of any
The requirement that there be a yearly rent is satisfied if the
tenancy, but until notice is given its total duration will not be
rent figure is expressed as an annual sum. It does not matter
certain. As the tenancy progresses from one period to another
by what instalments the annual sum is payable e.g. “rent =
the tenancy is regarded as one continuous tenancy without
$12,000.00 per year payable monthly” will give rise to a
break or renewal.
yearly tenancy
LANDLORD & TENANT 2003-04
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11
-
Where a tenancy from year to year arises by implication, the
tenant holds under such terms of the former or intended lease
as are not inconsistent with those of a yearly tenancy e.g. a
covenant to pay rent in advance or to keep the premises in
good and tenantable repair. So, a covenant to do extensive
repairs or to give two years notice to quite or to paint every 3
years would obviously not be consistent with a yearly tenancy.
-
The creation of a yearly tenancy by implication is a rebuttable
presumption. The payment of rent does not of itself create a
tenancy from year to year. When such a tenancy does arise as
a result of the tenant “holding over” and paying rent after the
original lease has ended that tenancy will be determinable on
the anniversary of the determination of the original term. The
minimum period of such notice would have to be 6 months.
[Landlords should be advised that where a tenant holds over
and rent restriction legislation exists the tenant becomes a
statutory tenant. Apart from six months notice the landlord
will have to give a reason for notice to quit where the tenant is
not willing to move.
6) Other periodic tenancies
-
What has been said with respect to yearly tenancies applies
mutatis mutandis to quarterly, weekly and monthly tenancies
i.e. they can be created by express agreement or by implication
where rent is paid and accepted on a quarterly or weekly or
monthly basis.
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12
7) Tenancy at will
-
Usually arises where a person occupied land with the
permission of the owner but does not pay any rent.
-
A tenancy-at-will is the lowest estate known to law and does
not comprise a legal estate.
-
It can be terminated at any time by the landlord withdrawing
permission for the occupier to be on the premises and therefore
is for an uncertain duration.
-
A tenancy at will can be created by express agreement but
usually it will arise by implication
(i)
where a tenant holds over at the end of a fixedterm tenancy
-
(ii)
before the actual grant of a tenancy
(iii)
before the sale of a freehold
If a tenant-at-will begins to pay rent the tenancy-at-will may
be converted into an implied tenancy if the intention to create a
tenancy can be inferred between the parties.
If the
circumstances indicate there is no intention to create a tenancy
the tenant will remain at will.
-
In some situations it will be difficult to distinguish a tenant at
will from a licence and the courts prefer to opt for the latter.
Street v Mountford
8) Tenancy at sufferance
-
Will arise when a tenant holds over at the end of his or her
tenancy without the permission of the landlord.
-
Is not a real tenancy at all but just a glorified trespasser, to
whom the landlord has not given permission, but to whom the
landlord has not actively objected.
-
However, like a tenancy at will a tenancy at sufferance may be
converted into an implied periodic tenancy if the landlord
accepts rent and an intention to create a tenancy can be
inferred.
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13
CAPACITY TO GRANT OR HOLD LEASES
government officer who wields this power is the
There is often a need to establish whether transactions can be
Commissioner of Lands.
pursued with the consent available.
8.
Tenant for life – Under settled land legislation the tenant-for-
1.
Absolute owners
life can grant leases. He is the person who is for the time
2.
Joint tenants
being beneficially entitled under a settlement to possession of
3.
Aliens – the right of aliens to own or lease land is governed by
the settled land for his life. There are however, certain
statute in most jurisdictions e.g. in BVI “non-belongers” or in
statutory restrictions with respect to the duration of the demise.
Barbados “aliens”. Jamaica is the only Caribbean jurisdiction
4.
administrators
regard. But in other jurisdictions, before granting a lease the
administration are placed in the shoes of the deceased and can
lessor and/ or lessee must meet some statutory requirements
grant leases though of course it is the duty of personal
including re nationality. Also in Jamaica the distinction is
representatives to realise the property within a reasonable time.
made between residents and non-residents through legislation
10. Trustees – Where a person wishes to guide the affairs of his
appointed
the
grant
of
letters
of
property after his death he may settle the property or create a
Minors/Infants – By various property statutes an infant or
trust for sale. By the latter land is granted to trustees to hold
minor can neither grant nor accept a legal lease. A minor can
on trust to sell and pay the proceeds of sale to named
however, acquire and hold and therefore also assign an
beneficiaries. NB The trustees have a power to postpone sale
equitable interest under a trust of a legal lease. If s/he does not
and manage the land in the interim. Thus trustee can lease the
repudiate that interest within a reasonable time after attaining
land for any number of years consistent with the estate they
majority s/he will be bound by it. Therefore a grant by or to an
hold.
11. Married women – by statute a married woman is capable of
trust, but voidable nevertheless until s/he becomes 18.
acquiring, holding and disposing of any property in all respects
In the law of contract a minor can be held liable on a contract
as if she was a single person and so she may create and accept
for necessities supplied to him/her. Such a contract is valid
leases of land.
12. Power of attorney – An agent acting under a power of attorney
minor’s status.
may grant or accept a lease if expressly given the power to do
Mentally disordered persons – There is a question whether the
so. Generally powers of attorney are strictly construed and so
party has the capacity to participate in the tenancy. The general
general clauses contained in the power are not likely to be
position is that the lease is binding provided that the other
interpreted as granting specific powers.
party did not know of his disability so as to take advantage of
13. Mortgagors and mortgagees – A mortgagor of land who
it. If the other party was aware of the disability the lease is
remains in possession or a mortgagee who is in possession
voidable at the election of the disabled person.
may lease land subject to express statutory limitations and
Like an infant/minor a mentally person may be liable for
subject to the terms of the mortgage.
necessaries supplied to him under the law of contract.
In Jamaica NHT mortgages restrict the right to grant lease
Necessaries therefore may include suitable accommodation.
because the property is meant to be owner-occupied.
Corporations – A corporation exists as a legal person in its
NB: the rules relating to a mortgage differ according to
own right but is subject to certain disabilities which vary
whether the property is registered or unregistered land i.e. an
according to the method by which the corporation was created.
unregistered legal estate vests in the mortgagee with the equity
In the Caribbean corporations are usually created either by an
of redemption in the mortgagor. Whereas with unregistered
Act of Parliament or under the provisions of the various
land the legal estate remains in the mortgagor with the right to
company acts.
sell or foreclose being granted to the mortgagee.
A corporation created by statute will possess only those
powers that are expressly conferred upon it by the enabling
law or derived by necessary implication from its provisions,
otherwise the lease will be void.
A company incorporated under the Companies legislation must
set out the objects for which it was incorporated.
Any
transaction, including the granting or accepting of leases
inconsistent with this objects will be ultra vires and therefore
void.
7.
by
such as Exchange Control Act.
and binding and might include accommodation suitable to the
6.
Personal representatives – Executors under a will or
that does not have legislation to deal with non-nationals in that
infant/minor will be valid in equity under the device of the
5.
9.
The Crown/State – The Sovereign is a corporation sole and at
common law can grant leases and accept them. In Jamaica the
LANDLORD & TENANT 2003-04
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14
DRAFTING OF LEASES
They will also contain the parcels i.e. a description
Statutory provisions
of the property demised and any exceptions and
-
The problem is knowing how to use and apply legislation.
reservations e.g. any easements. The description of
Skills and knowledge are pre-requisites for those drafting
the property will obviously vary e.g. the number and
leases since they demand a clear understanding of landlord and
name the road on which the premises are located, or it
tenant law coupled with a knowledge of contemporary local
may be by means of a plan endorse on the lease, or by
practice. E.g. although many examples can be found of
means of a description of the location and a
repairing covenants as they relate to the UK local building
description of the premises, or may be by means of
practices could affect the implementation of such covenants.
metes and bounds and measurements (surrounding
Drafters also require the vision to anticipate future trends.
premises and roads)
-
From time to time it will be necessary to incorporate novel
(ii)
the
habendum
–
The
fixed
duration
and
clauses and great care must be taken to draft these as simply
commencement of the term of the lease.
If the
and precisely as is possible, for in the event of litigation the
commencement is not stated it begins, in the absence
court will at least appreciate there was no intention to confuse
of anything to the contrary, from the delivery of the
or mislead.
deed. In the case of a lease not under seal, i.e. a deed
under hand, it begins from the date of entry.
The duration of the lease must be certain and the date
Form and Requisites of a Lease
1.
A lease by deed – A deed is a formal written document
for
signed, sealed and delivered by the parties. Sometimes it may
commencement of the term.
be delivered as an escrow, to take effect upon the performance
must
be
ascertainable
at
the
the redendum – This is the clause in the lease by
of some condition.
which the lessor reserves the payment of the rent to
The traditional approach was one where the lessor executed
himself and is usually made by the words “yielding
the deed and the lessee executed a copy called “the
and paying”.
counterpart” to be kept by the lessor.
2.
(iii)
expiration
The deed and the
(iv)
the covenants – The rights and obligations of the
counterpart were then indented. This “indenture of lease” is
landlord and the tenant will be set out in the
now found only in the Bahamas.
covenants contained in the lease. The lease should
Generally an indenture is a document written in duplicate on
contain all the covenants agreed between the landlord
the same parchment or paper and divided into 2 by cutting
and the tenant with regard to the tenancy and the use
through in a wavy or patterned line. The 2 parts could then be
and enjoyment of the demised premises.
fitted together to prove their authenticity.
There is no particular form required and generally
A deed between parties has the effect of an indenture today,
any words in the lease showing an agreement that
though it is no longer indented. Any deed, whether or not it is
something shall or shall not be done will be treated as
indented may be described as a deed simpliciter.
a covenant.
The deed must then be properly stamped and recorded or
Covenants however have to be distinguished from
registered as the case may be, so it is complete on its face. In
conditions.
Jamaica if there is a failure to record or register within the time
determine whether a provision is a covenant or a
provided a penalty may be levied of 100% plus $10.00
condition.
A lease of unregistered land – The format of a lease of
The covenants that are contained in a lease will vary
registered land should follow the appropriate statutory
according to the nature of the property. The lease of
requirement.
These however, are fairly flexible and are
a single dwelling house usually contains the more
usually given as a guide only. Nevertheless they must be in
common and usual covenants. Commercial mining
writing and signed by the parties to the document. Where
and agricultural leases are often more complicated
appropriate they should be stamped and registered.
and a lease involving an apartment in a block in a
Sometimes it will be difficult to
condominium or strata complex will usually contain a
Parts of a lease
large number of covenants. The tenant will find his
The traditional lease is usually divided into 4 to 8 parts
use of the apartment controlled by the covenants in
(i)
the premises – the first part of the lease. It should
the interests of the community of occupants.
contain the dates, names, addresses and occupation/
addition, there might also be by-laws, over and above
status of the parties and the operative words i.e. the
the statutory ones that will govern the use of the
demise or lease. But any words showing the intent of
apartment if it is part of a condominium or apartment
the parties to give and take exclusive possession for a
complex.
certain term are sufficient e.g. “agree to let” or “lets”.
1st question: should bylaws be included in or referred
to in the lease.
LANDLORD & TENANT 2003-04
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In
Because the law allows strata
15
complexes to make or repeal their own bylaws, if the
provision is included in the lease it will be applicable
even when the bylaws are amended.
2nd question: townhouse complexes do not enjoy any
special legal provisions. However, strata provisions
may be incorporated by making 1 of the townhouses
into two apartments with separate titles, therefore
converting the area into a strata complex.
(v)
provisos (if any) – This section of the lease will
contain the limitation which operate to qualify,
enlarge or defeat the estate which has been granted.
A proviso for re-entry on non-payment of rent is
regarded as usual. A proviso for re-entry upon the
breach of any other covenant is however, not usual.
(vi)
options (if any) – Options to purchase the reversion
and options to renew are clauses sometimes included
in a lease where specifically required by the parties.
However, a lease will not be bad because it doesn’t
include options.
(vii)
costs
(viii)
schedules (if any)
LANDLORD & TENANT 2003-04
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16
RENT
-
Rent goes beyond a mere covenant even though it is usually
set out in this section. It is fundamental to the tenancy, but it
-
-
-
-
Rack rent – full annual value of the property or within a
reasonable margin of it at the commencement of the lease.
3.
Ground rent – less than a rack rent, the difference having been
is a provision that may be included in the lease [NB: don’t
capitalised in the form of a premium taken by the landlord
confuse rent with “a sum payable for occupation” or “mesne
from the granting of the lease. This type of rent is more
profits” which are not badges of a tenancy.]
commonly found in long leases and building leases.
Tenant still under obligation to pay rent even if the premises
4.
Peppercorn rent – very nominal ground rent e.g. 10 cents per
rented are destroyed or otherwise made uninhabitable. Note:
annum. All it does is ensure that the relationship of landlord
this is why many leases contain an express clause suspending
and tenant is established and ensure there can be no question
tenant’s obligation to pay rent in such circumstances. National
of adverse possession. This is often the type of rent used
Carriers Ltd v Panalpina stated that the lease may be
between family members.
frustrated in certain restricted circumstances.
-
2.
5.
Dead rent – reserved on the lease of a mine or other wasting
Rent is defined as the compensation or consideration which the
asset, which is payable throughout the term.
tenant pay to the landlord for the exclusive possession of land
increased by royalties payable in addition to the rent.
under a lease
royalty is a true rent if properly reserved.
Rent does not have to be money. It may be the performance of
6.
It may be
A
Variable or sliding scale rent – Fixed by reference to the cost
services, or payment in kind,
or value of some commodity e.g. gold or the cost-of-living
Montague v Browning. Landlords let a dwelling house to the
index, or the value of a foreign currency, or where the rent
caretaker under an arrangement where his wages were
reserve is fixed by reference to a factor e.g. the tenant’s trade
deducted from the rental value. It was held that where rent is
as it relates to his net or gross profits. These arrangements
payable in kind by goods or services and the value quantified
often create difficulty and conflict and therefore a client needs
in terms of money the sum is the rent for the purpose of the
to be advised of the implications if this form of rent is
Rent Restriction Act.
proposed.
Rent must be certain or capable of being ascertained with
These methods of fixing rent are not, however, as popular as
certainty e.g. rent varying with the value of gold was said to be
the use of a rent review clause, which is an attempt to ensure
certain in Treseder-Griffin v Co-operative Insurance
that the rent reserve keeps pace with inflation or the cost of
Society Ltd NB: Setting rent in $US may be a breach of the
living.
Rent Restriction Act because of the possibility of devaluation
-
of the Jamaican dollar against US currency allowing for an
Distinction between rent and other periodic payments
increase greater than that statutorily allowed. On the other
-
hand rent based on “as many hours as the landlord required”,
payment, though called rent is indeed rent, because if it is not,
in Barnes v Barrett was said to be not sufficiently certain
it cannot be distrained for and it may be enforceable only
Rent is payable by the tenant to the landlord or to his
between the original parties and not e.g. against an assignees
authorised agent and it must be paid in the manner specified in
of the tenant.
the lease James v Venezuela
-
-
complexes where charges in addition to rent e.g. maintenance
payable at the end of each period of a periodic tenancy or at
and security are applied.
-
arrears unless specifically stated that it is payable in advance.
Rent is payable without deductions unless the lease authorises
the making of deductions or the tenant has paid sums which
-
This tenancy would also arise in sums paid e.g. in strata
If the lease does not state the manner of payment, rent is
the end of each year of a term of years. NB: Rent is payable in
-
It is important to be able to determine whether a particular
Further, if the payment is not rent the agreement between the
parties may not be a tenancy, Barnes v Barrett
-
The following are not rent:
1) A rent charge – e.g. father charges property so money can
the landlord has a legal duty to pay.
be paid to daughter. A sum of money charged upon land
Unless there is an express covenant to the contrary the
for a term or for life with an express power of distress to
obligation to pay rent will continue unaffected by any changes
secure the payment of the money. But it is not an incident
in the nature of the demised premises. The Court in National
of tenure and the owner of the rent-charge has no
Carriers Limited v Panalpina Northern Limited has said
reversion in the land charge.
however, that the doctrine of frustration may apply although in
a restricted way, to a contract for a lease. Thus the obligation
to pay rent could be ended by a frustrating event.
2) A rent seck – similar to a rent charge but without an
express power of distress
3) A payment in gross – a payment reserved in favour of
someone other than the landlord.
Types of Rent
1.
4) A premium – At common law a premium is not rent and
Best rent – the highest rent that can be reasonably be obtained
the obligation is purely contractual.
for the duration of the lease. Younis v Azan
Restriction Act the imposition of a premium is illegal.
LANDLORD & TENANT 2003-04
Page 16 of 47
Under the Rent
17
The question arises in relation to the Jamaican practice of
of the rent due and therefore cannot be distrained for. But
security deposits.
where payment by a tenant gives a right of set-off, distress can
5) Service charges and other payments – e.g. insurance
be brought for the full rent even though if sued for the full
premiums and the use of facilities such as swimming pool,
rent, the tenant could set-off those payments.
tennis courts. These payments are incidental to the use of
the premises and are not distrainable unless an express
Remedies for non-payment of rent
power is given. There is a debate in Jamaica about giving
A landlord usually has 3 distinct remedies against a tenant in
power to distrain because it is argued that this right was
arrears with the rent
brought to an end in the 1970s with the amendment of the
1.
may levy distress upon the tenant’s goods which ultimately he
Landlord & Tenant Act. It is suggested that the better
may sell to pay off such arrears as remain unpaid (not
option is to go to court for an order to recover from goods
applicable in Jamaica)
seized.
2.
Action for rent – action for debt on the covenant to pay rent
o
Forfeiture – The landlord may seek to terminate the
Payment of Rent
tenancy by forfeiture in exercise of a right of re-entry
-
The rental periods and the dates on which the rent is
expressly reserved under the lease in the event of
payable for each period should be clear from the lease.
non-payment of rent. However the Registration of
But if there is no stipulation as to the periods a yearly rent
Titles Act implies a covenant for the landlord to re-
will be implied.
enter for breach of covenant to pay rent or other
Rent is payable in arrears unless expressly agreed to be
covenants.
paid in advance. Any such agreement will be construed
Turner v Walsh [Section 12 Conveyancing Act
strictly against the landlord.
gives to a mortgagor entitled to possession or to
Rent is due on the morning of the day specified for
receipt of rent and profits of land subject to a lease,
payment, but it is not in arrears until after midnight. Re
whose mortgagee has neither taken possession nor
Aspinall v Aspinall
given notice of intention to take possession, the right
Rent paid before the due date is not strictly satisfaction of
to sue the lessee for breach of a covenant to repair.]
the obligation so that if a 3rd party acquires the landlord’s
Connaught Restaurants Ltd v Indoor Leisure [Term
reversion after payment, but before the due date the tenant
that stipulated that the rent was to be paid w/o any
may be obliged to pay the rent to the new landlord unless
deductions did not preclude tenant’s right to set-off.
the tenant has had no notice of the assignment before the
Held: clear words were needed to exclude tenant’s
due date. James v Venezuela
equitable right of set-off.]
Rent is payable either to the landlord or his agent
Lee-Parker v Izzet [Tenant held entitled to recoup
expressly or impliedly authorised to receive it. On the
themselves from future rent when they expended
death of the landlord, the rent is payable to his personal
money on repairs. However, it did not follow that the
representative until the reversion becomes vested by their
full amount expended by tenant on such repairs can
assent or by conveyance or transfer in some other person.
properly be treated as payment of rent. Note: this
Where the landlords are joint tenants any one of them can
course can only be exercised when and so far as
sue or give good receipt for the entire rent. On the death
landlord is in breach of covenant to repair and any
of any joint tenant the entire rent is due to the survivors.
necessary notice must be given to him.]
Where the reversion is assigned, the assignee becomes
White v Cotterell [Tenant ceased paying rent to the
entitled to receive the rent, but the tenant will not be
grantor of the lease and started paying to 3rd party
prejudiced if he continues to pay rent to the assignor until
who claimed to be the landowner. Held: Tenant
he has received notice of the assignment.
estopped from denying that the grant was ineffective
-
-
-
-
-
-
to create the tenancy that it purported to create. In
Deductions permitted from rent
any event the grantee had failed to show a better title
-
A tenant may only make deductions from the rent where
in anyone else.] Cf. Meredith v Gray [Grantor not
permitted by the lease or by statute or where the sum paid
entitled to rent arrears as tenant made new
ought to have been paid by the landlord. If so he can treat the
arrangement with co. with title paramount.]
sum as a set-off or by way of a counter-claim.
Smith v Cox [Landlord’s agent frequently rendered
Where the lease provides that no deductions are to be made
a/c to her when tenant failed to pay. Issue: whether
whatsoever then only statutory deductions can be made e.g.
payment good if paid by agent. Held: the agent did
property taxes.
not intend the payment to be made on behalf of tenant
The difference between a right of deduction and a right to set-
and did not have tenant’s authority to make the
-
-
off is the amount of a lawful deduction is pro tanto satisfaction
LANDLORD & TENANT 2003-04
Page 17 of 47
18
payment, nor was the payment subsequently ratified
by tenant.]
Premiums
Coombes v Sampson [No rent but person given
-
A premium is a sum paid for the grant of a lease or for the
exclusive possession. Held: no special circumstances
renewal of a lease, a premium is a contractual obligation that is
to negative a tenancy in favour of a licence.]
not attached to the leasehold estate and is therefore not rent.
Thus the obligation is not transferred upon an assignment and
a landlord cannot levy distress for its non-payment.
Rent Review Clauses
-
In many medium and long-term leases, particularly of
-
a premium especially where a premium is paid in instalments.
property, it is common today for rent review clauses to be
Samuel v Salmon & Gluckstein
-
that the requirement of a premium in return for the grant or
fixed intervals during the term.
assignment of a statutory tenancy is illegal. This prevents
At each review date the market rent then current for the
landlord from collecting any sum other than the rent he is
demised property will be assessed and substituted for the rent
entitled to.
-
described as “the payment of any sum by way of a premium or
clause;
loan in addition to the rent.” A premium will also include any
a)
fine or pecuniary consideration that is paid in addition to rent.
c)
whether time is of the essence
-
the effect of the delay by the landlord
e)
The majority of residential property landlords require a
deposit, which is stated to cover damage to fittings and
d) the position where no formula is provided for determining
furnishing to ensure against non-payment of public utility bills.
a new rent
It is submitted that most security deposits are illegal with
the duty of an arbitrator/valuer
respect to controlled remises i.e. under statutory provisions.
In order to be operative, landlord has to trigger the procedure
See however, R v Ewing (1977) 65 Crim AR 4 and by Jerome
by serving intention upon tenant although in some cases it is
Lee Drafting Commercial Leases
automatic. Tenant then responds with counter-notice stating
-
For the purposes of the Rent Restriction Act a premium is
The following should be considered when drafting such a
b) the position when time is of the essence
-
Statutory restrictions against premiums – The general rule is
Such a clause usually provides for the rent to be reviewed at
previously payable.
-
However, it is not always easy to distinguish between rent and
commercial property, though it is not restricted to commercial
included in leases.
-
-
-
A security deposit that will yield no additional financial
his intentions.
benefit and designed to protect the reversion against certain
Rent review provision in the lease should provide a table
charges does not, it is submitted, breach the legislation e.g. a
setting out the dates and time limits within which the parties
deposit in an escrow account.
should act
-
Time is of the essence only if: [United Scientific Holdings v
Service charges
Burnley Borough Council]:
-
(a)
the terms of the lease expressly provide that time should
residential or business complex the lease often provides for the
be of the essence, or
payment of a service or maintenance charge.
(b) the terms of the lease imply that time is of the essence,
(c)
-
This sum ought to reflect the value of services provided by the
for e.g. where the rent review clause is linked to a clause
landlord or the body managing the complex in a strata or
providing an option and that option must be exercised
condominium situation.
within strict time limits
landlord it is generally more convenient for him to provide
the surrounding circumstances indicate that time is of
common services for all the tenant rather than leaving
the essence.
individuals with this responsibility e.g. removal of garbage,
Where the complex is owned by
C.H. Bailey Ltd v Memorial Enterprises Ltd [Rent was to be
cable and security services. In addition it enables him to retain
reviewed on Sept. 21, 1969. Landlord did not seek to review
a high level of control and to preserve uniform standards of
until the next year. Held: on a true construction of the
maintenance
agreement, Sept 21 was the date by reference to which the new
-
rent was to be ascertained. It was not necessary that the new
rent should be determined before or on that date. Accordingly
of the fact that the date had passed.]
The liability to pay a service charge will arise as a result of a
covenant in the lease and not otherwise.
-
landlord was not precluded from invoking the clause by reason
-
Where the leasehold premises is only one of several units in a
Service charges may be made payable to a 3rd party e.g. a
management agent or maintenance company.
-
A service charge is a payment that is separate from and
The fact that there may be a provision in the lease allowing
additional to rent, but it is possible to include a service charge
landlord to vary the rent is not necessarily a bar to the rent
as part of the rent and thus enjoy the remedies available for
being certain if a provision is included that the amount of rent
non-payment of rent.
due can be calculated properly at the date of payment.
LANDLORD & TENANT 2003-04
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19
-
Statutory Restrictions - Where leases premises are governed
by rent restriction legislation, the general position is that the
standard of assessed rent should reflect the total consideration
for the use and occupation of the premises i.e. the landlord
cannot increase the assessed rent by imposing service charges
which would amount to additional rent.
This would not
however include services that would not have been considered
when rent was being determined e.g. security costs and other
facilities that fall outside of valuers’ terms of reference.
-
Business tenancies - Business tenants, except those protected
by statute, must comply with their leasehold obligations to pay
service charges.
Sometimes disputes arise when tenants
believe that the standard of service provided is inadequate or
where the amount charged seems unreasonable. The solution
is to provide a satisfactory mechanism for reviewing the
facilities provided and the costs involved.
-
The most usual method is to apportion the service charge on a
fixed percentage basis. This is usually based on the floor area
of the premises. But many also consider the type of business
being carried on e.g. use of power a restaurant versus by a
boutique.
Statutes:
Rent Restriction: First Schedule Part II (b) & Registration of
Titles: s. 95(a)
LANDLORD & TENANT 2003-04
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20
-
COVENANTS
-
Definition: express or implied by common law or statute
contractual promise contained in a tenancy that can bind 3
paying money such as repayment of security deposits Hua
rd
parties if it “runs with the land”
Covenants which do not touch and concern the land include:
Chiao Commercial Bank v Chiaphua Industries
-
However, if the obligations are merely personal covenants
between the originsl parties to the lease then there is no
Privity of Contract
requirement for either assignee (new landlord or new tenant) to
-
Every landlord and tenant relationship originates in contract.
honour those promises.
So the original parties to the contract can enforce its terms.
Hua Chiao Commercial Bank v Chiaphua Industries: The
There is thus a legal relationship between the original parties,
landlord and tenant provided in the lease that the terms
namely privity of contract.
“landlord” and “tenant” would include assignees. When the
-
3rd parties under this rule are excluded from being able to
enforce any terms of the contract. 3
rd
lease was forfeited by the assignee of the landlord the tenant
party interests in the
requested repayment of a 2-month security deposit as provided
contract might have arisen either by an inter-vivos sale or
in the lease. Held, by the PC, the obligation to return the
transfer or by succession upon the death of 1 or both of the
deposit was merely personal and unless expressly assigned
parties.
with the conveyance of the reversion could not be required of
the new landlord. The tenant’s remedy was against the old
Privity of estate
landlord even if he no longer had an interest in the land.
-
At common-law, covenants that touched and concerned the
Woodall v Clifton: A lease of land for 99 years gave an option
land could only be enforced where there was privity of estate.
for the tenant to purchase the freehold at any time during the
These covenants only bound assignees if and so long as they
term. The tenant brought an action against the successor in
held the estate with which the covenants ran. Therefore the
title of the lessor to exercise the option. Geld, the liability did
covenants could not bind sub-tenants.
not run with the reversion and could not be enforced against
the assignees of the lessor.
Liability for covenants after assignment
-
When a tenant assigns his lease he hands over his interest in
the property entirely. The original tenant or assignor retains
no interest and the assignee or new tenant steps into the shoes
of the old tenant.
-
However, any covenants in the agreement which the old tenant
was required to comply with, must also be performed by the
new tenant, as long as they “touch and concern the land
demised or deal with the subject matter of the lease.
-
The original tenant’s covenants remain throughout the lease,
even if he assigns his interest. The ability to enforce them
against him passes to the assignee of the reversion although
there had never been any privity of estate between the assignor
of the lease and the assignee of the reversion.
Arlesford
Trading v Servansingh
-
When a landlord assigns his reversions he also hands over his
interest in the property entirely the original landlord or
assignor retains not interest and the new landlord or assignee
steps into the shoes of the old landlord.
-
However, any covenants in the agreement that the old landlord
was required to comply with, must also be performed by the
new landlord, as long as they “touch and concern the land
demised or deal with the subject matter of the lease.
-
A covenant by a tenant which touches and concerns the land
runs with the reversion and the benefit of such a covenant
vests in the successors in title of the landlord. The successors
in title may sue upon the covenants although the benefit of the
covenants may not have been expressly assigned.
-
Covenants which touch and concern the land include: rent P.
& A. Swift Investments v Combined English Stores
LANDLORD & TENANT 2003-04
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21
 COVENANT FOR QUIET ENJOYMENT
the court held that there was only a loss of privacy but no
-
Traditionally was not a covenant in the acoustic sense of the
physical interference. However in Owen v Gadd the UK
word quiet but imposed an obligation on the landlord to ensure
Court of Appeal held that the erection of scaffolding in close
that the tenant would have exclusive possession of the
proximity to the entrance of a shop constituted a breach of the
premises. Thus it was originally described as a “covenant to
covenant.
secure title and possession.’
-
-
-
-
Today there is a movement away from the traditional view that
Provides tenant with a cause of action arising from many
there must be physical interference before a tenant can
situations, ranging from harassment to landlord’s failure to
establish breach of the covenant.
repair.
Kenny v Preen [landlord sent threatening notes, banged on
If a 3rd party commits acts of nuisance the tenants remedy
the door and shouted abuse] Tapper v Myrie [the appellant
under this covenant will be against the 3rd party and not against
disconnected tenant’s electricity in order to get him out].
the landlord.
The present cases illustrate that the crux of the matter is that
The covenant only applies to;
the acts must interfere with the tenant’s freedom of action in
(i)
exercising his rights as tenant.
acts done by the landlord, whether on or off the
premises regardless of whether the acts are unlawful
(ii)
or lawful
Express covenants
acts done by the landlord’s servants or agent acting
-
under the landlord’s authority
(iii)
lawful acts of persons claiming title under the
an express covenant for quiet enjoyment (or for title)
-
landlord Rickards v Lothian
-
-
Most express covenants are qualified and will have the same
effects as the implied covenant. As long as the covenant is
The implied covenant for quiet enjoyment at common law is
limited to protecting the tenant from lawful eviction or
not an absolute covenant, but is restricted to the landlord and
interruption by the landlord or anyone claiming by or from or
persons for whom he is responsible. It does not therefore
under him it will be construed as qualified and will not protect
protect the tenant from someone with a superior title. So if a
the tenant from eviction by a person with a superior title.
landlord turns out to have a defective title, the tenant will not
-
The implied covenant for quiet enjoyment will be displaced by
-
Even an unqualified covenant by the landlord or any person
be able to bring proceedings against the person with a superior
claiming under him or any other person will not protect the
title to the landlord. Jones v Lavington
tenant against claimants of a superior title. For as it is said,
Covenant for quiet enjoyment is implied from any contract of
acts of strangers will only be included if they are mentioned
letting; even an agreement for a tenancy: Jones v Lavington
expressly either by name or as claimants to a superior title.
[Tenant couldn’t sue superior landlord who prevented him
Ram v Ramkisson [Landlord removed the iron sheets from
from carrying on his lawful business as the covenant was
the roof of the 2 end sections of a building the centre portion
implied]
of which was occupied by tenant – was guilty of breach and
Implied by statute but the covenant will not be implied where
nuisance]
there is an express covenant.
Sampson v Hodson – Pressinger [Tiles improperly laid on
terrace. Noise of treading feet penetrated to tenant’s flat below.
Nature of the Covenant:
a)
Held: landlord liable for breach and nuisance even though the
qualified undertaking as to title – landlord undertakes that
tenant in the flat above was using the premises for ordinary
he has sufficient interest in the property to be able to put
use.]
tenant into possession
b) an undertaking to put tenant into possession – requires
c)
Remedies for the breach
that landlord must permit tenant to be put into possession
(i) Damages
a qualified undertaking to allow tenant quiet enjoyment of
-
premises
An action for breach of covenant for quiet enjoyment is an
action for breach of contract. Contractual damages are limited
to losses that follow naturally from the breach. Thus a tenant
Application of the covenant
can recover damages for inconvenience, for damage to his or
-
her property and for the costs of any court proceedings.
At one time the rule was that a tenant had to show that there
was a substantial interference with his ordinary enjoyment of
If the breach has been so severe as to force the tenant to leave
the premises. This is a question of fact. The classic illustration
the property the tenant will also be able to recover moving
of the application of the covenant is Lavender v Betts [doors
costs
and windows removed by the landlord without any judicial
-
-
-
Exemplary damages may be awarded where a landlord has
permission]
calculated that he will make a profit above any compensation
Further the tenant also had to show some physical interference
to the victim by committing an act in tort. The purpose of
to constitute a breach of covenant. Browne v Flower where
exemplary damages is essentially punitive and they will be
LANDLORD & TENANT 2003-04
Page 21 of 47
22
awarded where e.g. the landlord had committed an act of
trespass.
Drane v Evangelou [landlord, in tenant’s absence, forcibly
entered the premises and put all tenant’s belongings outside.
Additionally, he had bolted the premises from the inside with
several people within. Held; the facts particularised the tort of
trespass and tenant was entitled to exemplary damages.]
-
Aggravated damages would be awarded to compensate the
tenant for injury to feelings and mental distress resulting from
the aggravation caused by the landlord’s actions. With respect
to mental distress however, see Branchett v Beaney but those
remarks were obiter.
(ii) Injunction
-
May be given in addition to damages to restrain the landlord
from breaching the covenant for quiet enjoyment.
-
If tenant has been removed from the premises an injunction
may be awarded to put him back into possession; Drane v
Evangelou
-
Note that this is a discretionary remedy and will only be
granted where damages would not be sufficient; damages are
usually adequate.
Davis v Town Property Investment Corp [Tenant couldn’t sue
landlord for building so high on adjoining premises that his
chimneys smoked
because
those
premises
were
acquired
subsequent to his lease.
Statutes:
Lessor covenant:
Rent Restriction Act: First Schedule Part I (b)
Registration (Strata Title) Act: First Schedule 1(d) – obligation
on proprietor.
NB: some statutes prohibit a tenant/proprietor from causing an
annoyance/nuisance to adjoining occupiers:
Rent Restriction: s. 25(c) – court may grant order for ejectment.
Also it in an implied covenant under First Schedule Part II(c)
Registration (Strata Titles) Act: First Schedule 1(e) – duty on
the proprietor. Note that under Second Schedule 1(b) – proprietor
refrained from making undue noise in or about any strata lot or
common property.
LANDLORD & TENANT 2003-04
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23
 COVENANT FOR THE NON-DEROGATION FROM
-
--This covenant is only seen to be useful where there is no other
GRANT
cause of action, either by way of contract or tort, i.e. where
This covenant embraces the principle that a landlord shall not
landlord has not acted unlawful b/c this covenant is restrictive
by his voluntary acts affect any rights that he has created.
--To be operative, landlord must know or be aware of the particular
Having given a tenancy with one hand, he is not to take away
sensitivity at the time of letting
the means of enjoying it with the other.
-
Up until recently there was a clear distinction between the
covenant for quiet enjoyment and the obligation not to
derogate from grant. The obligation only applied where the
landlord retained adjacent land. The underlying principle was
that a landlord could not do any act that was inconsistent with
the purpose for which the demised premises were let.
-
Thus to constitute derogation from grant, there had to be some
act by the landlord which rendered the land substantially less
fit for the purpose for which it was let. Aldin v LattimerClarke
-
The obligation was also applied where a landlord granted
easements over retained land.
-
Now Garner says that the two covenants are almost exactly the
same .p. 64
-
Landlord breaches this covenant if he retains land adjacent to
tenant’s premises and he, or someone deriving title from him,
performs some action which makes the premises substantially
less fit for the purposes for which it was let where at the time
of the letting landlord knew the purpose for which the
premises were demised.
-
Underlying principle is that landlord may not do any act which
is inconsistent with any purpose for which the demised
premises were let
-
Only applies where landlord retains adjoining land
-
Applies where landlord has granted easements over retained
property – he cannot derogate from these
-
No breach where landlord’s action results in tenant’s land
being less profitable
-
Most cases the breach of this covenant is the same as that for
quiet enjoyment – to interfere with tenant’s quiet enjoyment is
also to do something incompatible with the rights granted
under the agreement
Aldin v Lattimer, Clark, Muirehead and co. [Premises let for the
purpose of running a timber yard. Landlord erected buildings on
the adjacent land which interfered with the flow of air to tenant’s
drying sheds
Harmer v Jumbil Tin Areas Ltd [Purposes let for purpose of
storing explosives. Condition of licence was that there should be no
buildings within a specified distance of the storage area. L, who
retained neighbouring land, erected buildings on the land. Breach.]
Grosvenor Hotel Co. v Hamilton [Tenant’s house was damaged
by vibrations caused from pump operated by landlord on adjacent
land. Was evidence that the house was old and unstable and that a
house of ordinary stability would have withstood the vibrations.
Held: landlord liable nonetheless.]
LANDLORD & TENANT 2003-04
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24
 COVENANT TO REPAIR
-
-
-
-
It has been said that a tenant from year to year must keep the
NB: An area much affected by:
premises “wind and water-tight” and to make “fair and

the need for expert advice on repair and constructions
tenantable repairs”. But in Warren v Keen the scope and
techniques
meaning of these obligations were said to be doubtful. At the

the nature of building stock in UK
most it would seem that a tenant from year to year is only

the wider range of building materials in the UK
liable for minor repairs.

life expectancy of various types of buildings

duration of the tenancy in question
Care should be taken in proposing the need for repair to a
Standard of repair
-
The standard of repair required under a repairing covenant will
landlord as a tenant because it is a legitimate reason to give a
depend on the terms of the particular covenant and the
tenant notice to quit.
condition of the building.
The parameters of “repair” in the context of the law of
-
With regard to the latter, the general rule, as described by Lord
landlord and tenant are not clearly defined, as the cases will
Esher in Proudfoot v Hart is, “such repair as having regard to
demonstrate. Nevertheless the definition given in Calthorpe v
the age, character and locality of the house as would make it
McCosker is a good starting point. In this case it was said by
reasonably fit for the occupation of a reasonably-minded
Atkin LJ that repair means, “making good damage so as to
tenant of the class who would be likely to take it.”
leave the subject as far as possible as though it had not been
Tenant promised in a 3 year lease to keep and leave in
damaged. It involves renewal of existing parts”.
tenantable repair. Damages were originally awarded against
It may also involve replacing a worn-out or damaged article
him for the cost of re-papering, repainting, whitewashing and
with one that is new corresponding as closely as possible to the
cleaning and replacing the kitchen floor. Held: as above
original.
-
-
-
Further in determining the standards, this must be considered
The current approach by the courts in England is to see
at the beginning of the lease and not at the end. Calthorpe v
whether on a common sense approach the work required falls
McCosker
within the ambit of “repair”. Brew Brothers v Snax
-
In a14 year lease tenants covenanted to repair, keep in repair
Types of repairing covenants
and maintain. A year later the wall tilted and was shored up
-
to prevent collapse on neighbouring property. Held: definition
requires the landlord or tenant to repair the premises up to the
of repair versus inherent defect was a question of degree in
standard described in the covenant and may require that the
every case to be assessed by considering all the work to be
premises be put into repair if necessary and left in repair
done and not just the cause.
(Proudfoot v Hart)
At common law if there is no express covenant or statutory
entered into cautiously] If a tenant leases premises that are in
requirement to repair by either party neither party is obliged to
disrepair he will be required to put the premises in a proper
repair the demised premises and neither can require the other
state of repair and to keep them that way.
to carry out repairs. It is therefore normal to make express
-
-
-
-
-
[A very demanding covenant to be
To leave (deliver, yield up) in repair: This type of covenant
provision for 1 party to repair or for the repairs to be
usually found in short leases, is commonly expressed to be an
apportioned as between the parties.
obligation to deliver up the premises at the end of the tenancy
There are a number of statutory provisions however that do
in the same state of repair as they were at the beginning of the
govern the obligation to repair: Rent Restriction Act and in
tenancy, fair wear and tear accepted. In this type of covenant
the Registered Land Act
no liability can arise until the end of the tenancy. “Fair wear
In short term leases the landlord will often be responsible for
and tear excepted” is intended to relieve the tenant from
most of the repairs that are likely to arise, while in long-term
liability for disrepair due to the normal action of time and the
leases the tenant will be responsible.
elements and from normal and reasonable use by the tenant for
In leases of apartments or offices which form part of a larger
the purpose for which the premises were let. This covenant is
building it is the usual practice to require the tenant to keep the
often expressed as "Acts of God and the Queen’s enemies
interior in repair and for the landlord to be responsible for
excluded”.
exterior and structural repairs.
Property v Dudley
Gutteridge v Nunyard (1834) and Regis
At common law there is an implied obligation on the part of
the landlord where the premises are furnished that the premises
-
To put in repair: imposes burden on tenant to perform work
upon the premises to bring them up to standard
are habitable at the beginning of the tenancy.
-
To keep in repair: or To keep in good tenantable repair:
There is also an implied obligation on the part of the tenant to
use the premises in a “tenant-like manner” i.e. he must take
proper care of the premises. Warren v Keen
-
To keep in tenantable condition: goes further than a covenant
to keep in repair – there does not have to be actual disrepair to
give rise to an obligation under such a covenant. Premises to
LANDLORD & TENANT 2003-04
Page 24 of 47
25
be repaired up to the standard described in the lease and may
value or cost of the whole premises may sometimes be
require that the premises be put into repair, if necessary, and
helpful as a guide.”
left in repair
This dictum was approved in a number of subsequent cases
including Elmcroft Development Limited v Frankersley-
-
To repair and renew: unless clear words are used such a
Sawyer. However the fact that there is an inherent defect does
covenant does not impose any wider an obligation on the
not by itself exclude a liability to repair.
burdened party than a covenant simply to repair. Repair in this
adopted by the courts is

sense means the restoration by renewal or replacement of
Begin by identifying the parts of the premises that are
subsidiary parts of the whole. Renewal by itself means the
out-of-repair.
reconstruction of the whole or substantially the whole e.g.
condensation due to lack on insulation at windows
Lister v Lane.
and inadequate heating caused furniture and fixtures
The tenants agreed to a repair covenant for a 100 year-old
to rot. There was no breach of repair covenant by
property on boggy soil. The wall began to bulge out before the
landlords because there was no physical condition
end of the lease and afterwards the house was condemned and
that called for repair.

pulled down. On an action to recover the cost of rebuilding
the house, Held: the defect had been caused by the natural
Quick v Taff-Ely BC. Very severe
Then determine whether it is necessary to remedy a
design fault when carrying out the repairs.

operation of time and the elements of a house poorly
-
The approach
If not then the tenant will not be required to carry-out
constructed and the defendants were not liable to make it
repairs to the inherent or design fault. Post-Office v
good.
Aquarius Properties
To carry out structural repairs: this requires repairs to the
There was a defect in an office building basement,
main structure of the building i.e. walls, roofs, and floors.
which led to flooding when the water table rose.
Note: in Jamaica, the Occupiers Liability Act allocates
Held: The building was not out of repair. A covenant
responsibility for damage suffered by persons lawfully on the
to keep in repair did not impose a duty to remedy
premises. Therefore an occupier may need to carry out repairs
structural defects from faulty design or workmanship
upon pains of the Act
and which caused no damage to the to the structure

The rule had been that a repairing covenant did not include
However, if there is damage, which requires repairs
renewal where this amounted to a reconstruction of all or most
and this is as a result of an inherent defect then the
of the premises. Lister v Lane The rule was also that the
defect will have to be repaired.
covenant did not include putting right defects by substituting
Davestone
something different from the original since this would amount
Ravenseft v
Review Evans & Smith ,The Law of Landlord & Tenant p. 185
to an improvement. Sotheby v Grundy
In a 99-year lease for a newly-constructed house, the house
-
-
-
Fair wear and tear excepted: excludes tenant from liability to
was condemned and demolished 80 years in. It was found to
repair damage which occurs due to the natural process of
be badly constructed.
ageing – such damage could be caused by the elements or by
Held: no breach of the tenants’
covenant since the expenses were incurred because of inherent
tenant’s normal and reasonable use of the premises.
defects.
At common-law a tenant will therefore be excused from
Accordingly a repairing covenant did not include any
carrying out repairs which become necessary through the
obligation to repair inherent defects. Collins v Flynn
passage of time, bit it will not exempt him from liability for
The lease contained covenants to repair and renew. The pier
repairs necessary as a result of Acts of God, fire or accident
supporting walls subsided and these all had to be rebuilt with
never contemplated by the parties.
newly-designed foundations. Held: the work was an important
Note that various statutory provisions also except Acts of God
improvement outside the covenant that did not require him
and the Queen’s enemies, when dealing with registered land.
rendering up the premises in a different condition.
The tenant is also bound to do such repairs as may be required
In theory it is easy to distinguish between repair and
to prevent the consequences flowing originally from wear and
improvement and renewal.
In practice, it is often very
tear from producing other damage which wear and tear would
difficult. The approach adopted by Forbes J in Ravenseft
not directly produce if it had been corrected at the time. Regis
Properties Ltd v Davestone Holdings Ltd is,
Property Co Ltd v Dudley (1959)
The true test is as the cases show that it is always a question of
degree whether that which the tenant is being asked to do can
Note: It will not extend to the following:
properly be described as repair or whether on the contrary it
(a) If tenant uses premises in a way not envisaged when they
would involve giving back to the landlord a wholly different
were let which puts greater strain on the building and
thing from that which he demised. In deciding this question,
accelerates wear and tear
the proportion which the cost of the disputed work bears to the
LANDLORD & TENANT 2003-04
(b) If the damage is caused by extraordinary natural events
Page 25 of 47
26
(c) Where the cause of the damage can be traced back to a
defect which was originally due to fair wear and tear but
Notice
the damage itself is not caused by fair wear and tear:
-
Landlord must have notice – doesn’t matter that he has
Regis Property v Dudley;
reserved the right to enter the premises to inspect it:
Haskell v Marlow [Wife under covenant to keep place in
Morgan v Liverpool Corp [Defective window. Held: landlord
good repair. She did nothing actively to injure the
not liable for repairs as no notice given even though landlord
premises, but did nothing to counteract the natural
had a right of access to inspect the state of repair of the
process of decay. Held: breach.]
house.]
-
If tenant has not directly informed landlord then he may be
- To rebuild: landlord is under no obligation to rebuild the premises
able to establish liability if it can be shown that the landlord
if they are destroyed unless he has expressly covenanted to do so.
knew about the defect through a reliable source. Tenant must
Note: tenant, on the other hand, who has covenanted to keep the
show that landlord received info about the defect that would be
premises in repair will be obliged to rebuild the premises if they are
sufficient to put a reasonable person on enquiry as to whether
destroyed unless this obligation is expressly excluded by the terms
work was necessary:
of the lease.
Uniproducts Ltd v Rose Furnishes Ltd [Store room floor
collapsed and injured P’s manager. Held: no breach as
landlord was not informed and actual knowledge of the defect
Conditions precedent to repair
-
It is common for lease to contain a provision that landlord’s
could not be proved.]
obligation to repair arises provided that the tenant pays all rent
O’Brien v Robinson [Ceiling of bedroom fell in on the
and service charges. Note: However, landlord cannot use
plaintiffs while they were in bed. Held: no notice; landlord not
tenant’s breach of an obligation to pay rent or service charges
liable.]
as an excuse not to carry out repairs.
What is repair?
When will a liability to repair arise?
-
-
-
The test for determining the effect of a repairing covenant
An obligation to repair will arise when (a) there is disrepair;
is now the DEGREE TEST i.e. whether the work required
and (b) the party under an obligation to repair has notice of the
is repair as a matter of fact and degree : RAVENSEFT
disrepair.
PROPERTIES LTD V DAVESTONE [ cost of repairs a
For a condition of disrepair to exist, 2 factors must be
factor]
satisfied:
1.
there must be some deterioration of a part of the
premises from a previous better condition;
Lister v Lane: covenant does not mean that landlord should
get a different thing from that leased
-
Brew Bros. Ltd v Snax: the correct approach is to look at the
Post Office v Aquarius Properties Ltd [Basement
particular building, to look at the state that it is at the time of
was prone to flooding and tenant under obligation to
the lease, to look at the precise terms of the lease, and then to
repair. However held that no breach as the structure
come too a conclusion as to whether, on a fair interpretation of
of the basement had not deteriorated from a better
those terms in relation to that state, the requisite work can
previous condition.]
fairly be called repair. This is a question of degree.
Quick v Taff Ely BC [Severe condensation caused by
Lurcott v Wakely: [24 ft wide front wall of a building that
big metal framed windows. Damage to tenant’s
went back 100 ft required rebuilding – repair and not renewal.
clothes, linen, and furniture. Some of the rooms were
An old house must be kept in repair as an old house, but it
rendered inhabitable. Landlord not liable as also
must be kept in repair even if that means replacing parts until
covenanted to repair the structure and interior the
the whole is replaced.
walls and the windows themselves were undamaged
Per Cozens-Hardy M.R.: (1)essential question is whether what
and so there was no disrepair. If there was no
has occurred is of such a nature that it can fairly be said that
condition of disrepair, there could be no liability to
the character of the subject matter of the demise, or part of the
repair.]
demise has changed?; (2) is it something which goes to the
Cf. Staves and Staves v Leeds City Council [Here,
whole or substantially the whole, or is it simply an injury to a
damp and condensation caused small parts of plaster
portion, or a subsidiary portion of the demised property. Here:
to perish and tenant was able to recover b/c the
held that restoration of the wall would not change the character
structure had exterior of the flat had deteriorated.]
or nature of the building.
(b) the burdened party must be under an obligation to repair what
Per Buckley L.J: house would be put in repair in the sense that
has deteriorated.
there has been renewed or replaced a worn-out subordinate
part of the whole.
LANDLORD & TENANT 2003-04
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27
Per Fletcher-Moulton L.J.: when a man undertakes to keep a
Good tenantable repair
thing in repair, and it is not in that condition when the demise
--This is such repair as, having regard to the age, character, and
commences, the covenant implies that he is to put it in that
locality of the house, would make it reasonably fit for the
state as well as keep it in that state.
occupation of a reasonably minded tenant of the class who would
Point to note: the building here was old. Wall could not have
be likely to take it: Proudfoot v Hart.
been repaired w/o rebuilding. Submitted that would not have
Note: Calthorpe v McOscar [Houses leased for term of 99 years.
been repair if house was new.]
At the beginning of the term, they were country houses in a nice
Lister v Lane: [The wooden foundations of a house built on soft
neighbourhood. At the end of the term they had deteriorated so
ground rotted. To remedy would have involved digging down 17 ft
much that the only tenant likely to take them would be short term.
to solid gravel and putting in new foundations – renewal. Was held
Issue: whether the standard of repair was to be determined by the
that it would have been just as costly to underpin as to pull the
class of people likely to take it at the beginning (Proudfoot) or end
whole house down and rebuild it.]
of the term. Held : CA – to be determined at the commencement of
the term.]
Inherent defects
-
It had once been argued that the obligation to repair did not
Common law obligations on landlord
extend to repairing defects in the construction of a building b/c
-
Exception to caveat emptor.
a building w/o an inherent defect is in fact a wholly different
-
In the case of furnished premises, it was held that the common
thing from a building with an inherent defect: Sotheby v
law will imply into a tenancy of such premises a condition that
Grundy
the premises are fit for human habitation at the start of the
Collins v Flynn [Due to inadequate foundations, a structure
tenancy Smith v Marrable.
supporting part of the back and side wall of a house collapsed.
-
Held: to replace the foundations and rebuild the structure
Note:
would be an improvement of the premises and that the
(a)
applies only to furnished premises
covenant to repair did not extend to remedying an inherent
(b)
applies to residential tenancies
defect.]
(c)
applies only at the commencement of the tenancy
Approach adopted by the court:
(d)
covers only fitness for human habitation
(1) One must begin by identifying the parts of the premises
(e)
landlord’s liability arises from contract and so only the
that are out of repair: Quick v Taff-Ely B.C.
tenant can bring an action under the implied condition
(2) Then one must determine whether it is necessary to
(f)
the condition may be excluded from the tenancy by express
remedy a design fault when carrying out the repairs. If
terms of the contract
not, then tenant will not be required to carry out repairs to
the inherent defect
Note: This implied term is a condition and not a covenant. Breach
Post Office v Aquarius Prop. [Defect in the structure of
of the covenant does not entitle tenant to quit.
the basement by reason of porous concrete and defective
However, if the premises are not fit for human habitation the tenant
construction joints-caused basement to be flooded. Held:
is entitled to quit and will not be liable for rent; he will also be able
no breach of covenant by tenant since no damage to the
to recover damages.
building had been caused and the wetting of the floor
together with the inconvenience caused could not amount
-
There is an implied contractual duty of care to keep the
to disrepair. Would have been different if flooding
affected the wall plaster or electrical fittings.]
common parts in repair.
-
This implied duty is closely related to the implied duty not to
derogate from grant – if landlord rents a top floor to a tenant
-
This view of inherent defect was changed in Ravenseft Ltd v
and then refuses or fails to maintain the means to access to that
Davestone [Stone cladding on a large block of flats cracked
flat, effectively landlord would be depriving the tenant of the
and became detached from the building itself due to the failure
means of enjoying the flat.
to install expansion joints. Relative to the value of the building
the value of the cost of the work required to remedy the
Note:
inherent fault was small. Held: tenant under obligation to
(a)
“repair’ this inherent defect. The true test is that it is always a
matter of degree. Joints were a trivial part of the building and
applies only to the common areas of the building which are
kept in landlord’s possession and control
(b)
The term will be implied only in circumstances where it is
the cost of inserting them was trivial compared to the value of
necessary, where not to imply the term will render the
the building.]
contract ‘inefficacious, futile and absurd.’
LANDLORD & TENANT 2003-04
(c)
Duty is not absolute – only reasonable care need be taken
(d)
Can be excluded by express contractual terms
Page 27 of 47
28
(e)
Duty owed only to parties to the contract
the lack of repair. Tenant may withhold the rent if not
(f)
Landlord may not need notice
restricted by the covenant to pay rent and then if sued
by landlord for arrears of rent, set-off landlord’s claim.
(b)
Common law obligation on tenant
bring an action for specific performance of the
-
Implied covenant for tenant-like user and doctrine of waste
landlord’s covenant: In appropriate cases a court will
-
Tenant-like user = tenant must perform the everyday tasks
compel a landlord to perform his covenant to repair if he
around the home that a reasonable tenant would do : Warren v
is clearly in breach and if it is clear what has to be done
Keen [tenant should do things such as turn off the water, clean
to make good the repairs June v Queens Cross Prop.
the chimneys and window, unstop the sink…]
Ltd [Landlord covenanted to keep external structures
Note: This implied covenant remains quite limited; it does not
including walls. Failed to repair balcony.]
-
extend to replacing or repairing things which become defective
(c)
self-help: do the work himself and then recover the
through age or the everyday actions of the elements.
expenditure from landlord. A tenant may carry out
-
Tenant from year to year is only liable for minor repairs.
repairs to the demised premises where the repairs fall
-
If the landlord is under the obligation to repair it will be
within the scope of the landlord’s covenant and the
implied, in the absence of any express provision, that the
landlord having been given notice of the need for repairs
tenant has granted landlord the right to enter to inspect and
fails to act within a reasonable time. The tenant may
carry out repairs.
then recoup the expenses out of future rent. Lee-Parker
v Izzet; Granada Theatres v Freehold Investments
REMEDIES FOR BREACH OF COVENANT
Leytonstone However, statutory tenants i.e. under rent
A. The landlord may
restriction legislation may be best advised to bring an
1.
Sue for damages
action rather than adopting a self-help remedy because
2.
If there is a provision for forfeiture, forfeit in the manner
the statute treats any expenditure on repair as excess rent
laid down by statute.
which is recoverable in court. Note that the landlord
Measure of damages recoverable by landlord
must have obtained notice of the need for repair and had
-
The amount of damages depends on whether the action is
failed to carry them out w/n a reasonable time : British
brought during the currency of the lease or at the end. If the
Anzani v International Marine Management Ltd
former the measure of damages is the diminution of the value
[Also, at common law, the amount claimed to be set off
of the reversion that results from the breach. This is the
must be certain and could not be disputed or challenged
amount by which the market value of the premises is affected
as to quantum. Otherwise tenant can rely on an equitable
by the lack of repair. It depends on the length of the unexpired
right to set off.] Note that does not arise in a monthly
term. Accordingly, the longer the residue of the term, the less
tenancy
the diminution should be.
-
In the latter case the measure of damages is based on the
-
The extent of a landlord’s remedy to repair like that of a
tenant’s covenant to yield up the premises in repair. Here the
tenant depends on the extent of the exact wording of the
measure of damages is the actual cost of carrying out the
covenant.
repairs necessary to put the premises into the state of repair
required by the specific covenant. Joyner v Weekes
-
The measure of damages recoverable by a tenant
This is the difference in value to the tenant of the premises
B. The tenant
repaired and not repaired. Hewitt v Rowlands The tenant may
-
A landlord is not in breach of a covenant to repair unless he
initiate proceedings to recover such damages or may withhold the
has been given notice by the tenant or a third party of the need
rent if not restricted by the covenant to pay rent and then when
for repair. O’Brien v Robinson : This is so even if the
sued by the landlord for arrears of rent set-off the landlord’s
landlord has the right to inspect the premises. So in practice
claim. British Anzani v International Marine Management Ltd
the lease should include a right to inspect plus a provision that
The tenant is also entitled to recover the amount of damage to his
where there is disrepair the landlord would have notice of
personal property during the period of the landlord’s default in
disrepair upon exercising his right to inspect.
repairing and damages for injury to himself arising from the lack
The tenant may:
of repair.
-
(a)
Bring action for damages for breach of covenant –
difference in value to tenant of the premises repaired
General Points:
and not repaired: Hewitt v Rowlands. Tenant is also
-
Covenant is sometimes implied in order to make the tenancy
entitled to recover the amount of damage to personal
workable: Barrett v Lounova
property during the period of landlord’s default in
[Tenancy agreement contained covenant that tenant keep the
repairing and damages for injury to himself arising from
inside in repair. Nothing said re outside. Outside fell into bad
LANDLORD & TENANT 2003-04
Page 28 of 47
29
state of disrepair and tenant alleged that this caused damage
to the interior. Held: an obligation to repair the outside could
be implied into a tenancy agreement where it was necessary to
do so to give business efficacy to the agreement.]
-
An assignee of a term is not liable for particular breaches of
the tenant’s repairing covenant committed by his predecessor,
though he is liable for the disrepair of the premises as they
stand when he takes over so far as their then state of disrepair
falls within the scope of the tenant’s repairing covenant to
keep the premises in good and substantial repair. Granada
Theatres Ltd v Freehold
Statutes:
Rent Restriction Act:
Part I(a) – landlord under obligation to keep premises in a
tenantable state of repair and to observe reasonable standards of
maintenance
Part II(a) – tenant under obligation to keep premises in good order
and condition, fair wear and tear excepted. Under subsection(f)
tenant covenant to allow landlord to enter premises to carry out
inspection and repairs.
Strata Titles Act:
First Schedule 1(c)- proprietor under obligation to maintain the
strata lot and keep it in a state of good repair, reasonable wear and
tear and damage by fire, storm, tempest or Act of God excepted.
First Schedule 2(b) – the corporation (the body of proprietors)
responsible to keep in repair the fixtures and fittings including
elevators.
First Schedule 2(d) - corporation to maintain and repair pipes,
wires and cables used in the connection with more than one strata
lot in the common areas. Under 1(a) proprietor should permit the
corporation, upon notice, to enter strata lot to effect repairs.
Registration of Titles Act: s. 95(b) : tenant to keep and yield up
premises in good and tenantable state of repair, excepted are
accidents, Act of God, fair wear and tear.
Note that under s. 96(a) it is implied that landlord may enter the
leased premises only to view the state of repairs.
LANDLORD & TENANT 2003-04
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30
 COVENANT REGARDING USER
not to carry on or permit any trade, profession or business
user to be carried on upon the premises. Here, even a partial or
-
The general rule at common law is that the tenant is entitled to
minor business use of the premises will be a breach of
use the demised premises for any lawful purpose – This is in
covenant.
keeping with the proprietary rights that a tenant enjoys.
-
in breach of such a user covenant, but not a tenant who takes
Note: landlord is able to evict a tenant who uses the premises
in a lodger who lives with the tenant as part of the family :
for illegal or immoral purposes even if the lease does not
Segal Securities Ltd v Thoseby – however, there will be a
contain a proviso for re-entry : Litvinoff v Ken. See however,
breach of covenant if this activity is an arms length business
Rent Restriction Act whose provisions require the person to be
transaction and the guest or lodger does not live as a member
found guilty and convicted so it is not a subjective assessment
of the family.
A positive obligation to use a premises for a particular purpose
does not mean that that tenant must use the premises for that
notice to quit.
purpose; the tenant will not be in breach of covenant if he
Otherwise, if landlord wants to retain any control over the use
makes no use of the premises at all. Non-user was not one of
to which the premises are put, he will have to include an
the grounds on which the possession of property protected by
express provision in the lease or have the benefit of statutory
the Rent Restriction Act could be sought : Greaves v Field
-
Covenant may also be included on the part of the landlord not
Landlords have traditionally included covenants in leases
to let adjoining premises for a particular use, such as a
restricting the tenant’s use of the premises. Today restrictions
business that competes with that of the tenant.
are inserted for a variety of reasons in residential lettings to
-
-
the court determine and if the tenant is convicted then serve
instructions implied in the lease
-
Tenant who takes in lodgers on a commercial basis would be
Solomon v Khan
by the landlord. He will have to lodge a complaint and have
-
-
-
Tenant does not breach covenant by changing user if no
ensure that the right ambience of the neighbourhood is retained
provision in the tenancy agreement which prevents this:
and to prevent nuisance and annoyance to other residents.
Solomon v Khan [Premises were let as a dwelling house. No
Nuisance = nuisance in law; Annoyance = broader, non-
express covenant against their user for any other purposes.
technical meaning and will cover the majority of acts that
Held: no breach where premises were being used for business.]
cause disturbance to neighbours.
However the tenant will be guilty of a breach where premises
The covenant will not however preclude tenants from taking in
let to be used as a dwelling house and tenant subsequently uses
paying guests or lodgers if they share in the family life.
it for business or trade purposes w/o landlord’s consent – s.
Seagal Securities v Thoseby.
25(m) Rent Restriction Act –
However, there will be a
breach of covenant if this activity is an arms length business
Gittens v Bernard [Also held that consent to vary user could
transaction and the guest or lodger does not live as a member
not be implied from the acceptance of rent after knowledge of
of the family. Thorn v Madden
the change where landlord protested from beginning to end
In commercial lettings a user covenant will be included to
against it.]
avoid competition from other tenants e.g. letting units in a
Atkin v Rose [ At the time of payment of rent landlord did not
shopping arcade will usually contain a provision which
know that tenant had breached the covenant as to user and
restricts the trade of individual shop units to prevent
subletting. Held: receipt of rent not equal to waiver. Even if
competition between businesses within the same shopping
landlord had knowledge of the breach, the receipt, in the
development. Where this occurs it is not regarded as an act in
circumstances, would amount, at most to a waiver of the
restraint of trade.
breach up to the date thereof. There will be no implied release
-
Burden of proof on landlord to prove breach of covenant
from the covenant for the future.]
-
Covenant which prohibit specific trades/businesses will not be
Cf. Central Estates Ltd v Woolgar [Notice served on tenant
broken if there is only a slight breach of the prohibited
b/c he was using the premises for illegal purposes. Held:
activity:
landlord’s demand for and acceptance of rent through their
Calabar (Woolwich) Ltd v Tesco Stores [held: covenant
agents with knowledge of the breach of covenant effected a
restricting use to a supermarket and allied purposes was not
waiver of the forfeiture even though the demand was as a
broken by the ancillary sale of freezers.]
result of a clerical error.]
-
-
A covenant against carrying on a noisome or offensive trade
will not be broken by carrying on a dangerous trade that is
neither noisome nor offensive.
Change of use
-
Absolute covenants - Where there is an absolute covenant
restricting user the landlord cannot be forced to agree to an
Business User
-
Majority of residential leases will contain a covenant requiring
alteration in use, even if the refusal can be shown to be
unreasonable. Landlord may refuse to change user or may
tenant to use the property only as a private dwelling house and
LANDLORD & TENANT 2003-04
Page 30 of 47
31
demand that tenant pay sum that can be agreed b/n them in
return for landlord waiving his right to rely on the covenant.
-
Qualified covenants - If the lease specifically states that
consent to a change of user is not to be unreasonably withheld
and a landlord refuses to agree to a change of use the tenant is
entitled to ask the court for a declaration that consent was
unreasonably withheld.
Waiver of covenant
-
If a landlord accepts rent in full knowledge of the breach of
covenant restricting user over a long period of time there is
good argument to say he waived or acquiesced in the breach.
Central Estates Belgravia v Woolgar However, if the rent
was accepted with knowledge of the breach for a short period,
only the past breaches would have been waived and there
would have been no implied release for future breaches.
Acceptance of rent under protests however, does not waive the
covenant. Gittens v Bernard
Remedies for breach of covenant
-
Unless landlord waives breach, his remedies will consist of an
injunction to restrain a breach of a covenant, or damages to
compensate for the breach.
-
As the breach will be of a continuing nature, the waiver will
have to be of a positive nature.
LANDLORD & TENANT 2003-04
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32
 WASTE
premises in as good a state of repair as at the outset of the
-
tenancy subject to age and reasonable user.
Waste is any act which alters the leasehold premises for better
or worse – tenant commits waste if he causes, by act or
-
omission, any lasting alteration to the land or premises to the
prejudice of the reversioner by way of damage, destruction,
permissive waste
-
addition, improvement or neglect.
-
Tenant-at-sufferance - liable for voluntary waste but not for
permissive waste
The obligation not to create waste is founded on tort and is
-
independent of any contract, express or implied.
-
Tenant-at-will – not liable for voluntary waste nor for
Periodic tenant – liable for voluntary waste but not liable for
permissive waste and is not liable for fair wear and tear.
Tenant is not liable for waste where the tenancy agreement
I.
provides for the act in question:
a yearly tenant also under the obligation to keep
the premises wind and water tight
Meux v Cobley Agricultural lease permitted tenant to improve
II.
farm. Thus not a breach of covenant to convert a farm into a
Weekly tenant – use the premises in a tenant-like
manner: Warren v Keane.
market garden since it was not prejudicial to the inheritance of
the reversioner.]
Remedies
-
of voluntary waste only.
Types of waste:
(a)
Landlord may claim damages or seek an injunction in the case
Voluntary waste – positive act of destruction e.g. felling
-
Damages = based on the damage to the reversion and is not
trees, pulling down buildings, removing tenant’s fixtures
related to the actual cost of making good the damage to the
and leaving the place exposed to the weather
premises.
Mancetter Development Ltd v Garmanson [Held: Burden
of filling up holes left in walls upon removal of fixtures lay
Section 25(c) Rent Restriction Act states that the landlord may go
on the person who removed the fixtures b/c that was when
to court for an order where the tenant or any person residing or
the waste occurred (building no longer weather-proof) and
lodging with him or being his sub-tenant:
not on the person who made the holes.]
(a) has been guilty of conduct which is a nuisance or annoyance
Omission can hardly constitute an act of voluntary waste.
or
(b) has been convicted of using the premises or allowing it to be
(b)
Ameliorating waste – form of voluntary waste that usually
used for an immoral or illegal purposes or
improves the value of the land e.g. putting up a building on
(c) has allowed the premises to deteriorate or become unsanitary
the land or extending the existing building . Unless there is
owing to acts of waste or the neglect or default of the tenant or
a substantial alteration, the court will not restrain such waste
any such person
by injunction nor will the alteration be a basis for forfeiture
NB: Where such person is a lodger or sub-tenant, the court must be
under a proviso to forfeit. Nor in general can damages be
satisfied that the tenant has not taken all reasonable steps to remove
recovered as there is no damage to the reversion.
the lodger or sub-tenant.
So
although ameliorating waste is a breach of the tenant’s
obligation not to commit waste, in practice it is a breach w/o
Defences
a penalty:
-
Meux v Cobley [Held: the court would not grant an
The damage resulted from the ordinary, reasonable and proper
use of the premises e.g. cutting down a poui tree.
injunction where ameliorating waste was committed. To
-
Damage caused by an act of God.
obtain an injunction against the tenant, landlord must prove
-
Where the claim is that wood and timber have been cut, tenant
that what tenant did was prejudicial to the inheritance.]
was entitled to do so by reason of his common law right as to
estovers i.e. to use wood for the purpose of carrying out
(c)
Permissive waste – based on the negligence and omission
repairs.
of tenant e.g., allowing a building to collapse for want of
necessary repair. Covenant breached if the building was in
Alterations and Improvements
repair at the time of the demise but not if it was in disrepair.
-
A landlord may be satisfied to rely on the law of waste to
protect his reversion against any damage caused by the tenant
(d)
Equitable waste – aggravated form of voluntary waste i.e.
making alterations or improvements to the demised premises.
extreme acts of damage for which a tenant for life can be
But he will only obtain damages if he can prove that
liable.
substantial damage was caused to the premises. Most leases
therefore contain a covenant by the tenant not to make any
Liability for waste
-
alterations to the demised premises. There is in fact no need to
Fixed term tenant – liable for voluntary and permissive waste
provide for improvements since an improvement will normally
– must carry out the necessary repair so as to keep the
be an alteration and therefore will fall within the covenant.
LANDLORD & TENANT 2003-04
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33
-
An alteration occurs when the actual fabric of the demised
premises is altered. Duke of Westminster v Swinthon
-
The covenant may be an absolute one or it may be qualified by
words such as “not without the consent of the landlord, such
consent not to be unreasonably withheld.’
LANDLORD & TENANT 2003-04
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34
 ASSIGNING AND SUBLETTING
3 years can be created orally, an assignment of the same
-
In the absence of a stipulation to the contrary or implied
lease must be by deed. In jurisdictions with registered land
statutory provisions a tenant may assign or sub-let the demised
legislation, it need not be by deed, but must satisfy the
premises freely because he is the holder of an estate.
requirements of the respective statutes. In JA needs to be in
However, a covenant against assigning/subletting restricts the
writing.
right that the tenant has at common law and acts to the benefit
-
of landlord.
-
Where there is an agreement to assign for value, this may pass
an equitable interest to the assignee.
Assignment = transfer by the tenant to another person of the
entire interest in the property for the whole of the residue of
Subletting:
the term of the lease. Documents operating as assignments of
-
Same principles as apply to creation of a head lease.
lease are rarely found in practice because their effect is to
-
-
avoid original landlord’s agreement.
Landlord’s remedies
Subletting = tenant parts with the entire demised premises or a
Under Section 25 (1) (l) of the Rent Restriction Act,
part of it for less than the residue of his whole term. Therefore
“Subject to section 26, no order or judgement for the
an additional lease is created. The period must be at least 1 day
recovery of possession of any controlled premises or for
less than the unexpired period of the lease. If therefore the
the ejectment therefrom, shall, whether in respect of a
tenant purports to sub-let for a period equal to or more than the
notice to quit given or proceedings commenced before or
unexpired period of his own lease this will in fact be an
after the commencement of this Act, be made or given
assignment.
unless – the tenant has sub-let, or parted with the
City Enterprises v Esso Standard Oil: The appellant leased
possession of, the whole or any part of the premises
land from the council for 20 years. The lease contained a
without either obtaining the consent of the landlord or
covenant for the erection of a gas station. Consent was given
being expressly authorized by or under the tenancy
by the council for the lease to be assigned to the respondent.
agreement or lease so to do”.
The appellant purported to lease the land for 20 years but
The landlord may go to court for an order to recover premises
without the option to renew in the head lease. On appeal
where the tenant has sub-let or parted with the possession of, the
against an action by the respondent for the option to be
whole or any part of the premises w/o either obtaining the consent
included in the sub-lease the court held the appellant had
of the landlord or being expressly authorised by or under the
disposed of his entire interest in the land, but did not take the
tenancy agreement or lease so to do.
benefit of the option because that covenant did not touch and
Ashby v Jerome it was held that where there was no term in the
concern the land.
tenancy agreement prohibiting assignment without consent, the
Note: Because a periodic tenancy is regarded in law as a
position of an assignee would be affected by the Rent Restriction
continuing tenancy until it is determined, a periodic tenant can
Ordinance to the extent only that he might be ejected at the suit of
grant a sublease for a term in excess of his own without it
the landlord on proof that his refusal to consent was reasonable.
being treated as an assignment. However, sublease will end
with the determination of the head lease.
Covenant against assigning &/or subletting may be
a)
Implied into the lease under
(i) Rent Restriction Act S 4 1st Schedule Part II “not
to sublet the premises or any part thereof without
the prior consent in writing of the landlord” or
b) Express and be either:
Formalities
(i)
absolute
Assignment
(ii)
qualified or
-
(iii)
absolutely qualified “such consent not to be
An agreement to assign a lease will not be enforceable
unreasonably withheld”
(equitably) unless:
a)
the agreement is in writing or
b) there is a memorandum or note of it signed by the party to
be charged Statute of Frauds or
c)
-
there is part performance:
Express Qualified Covenant
-
The most usual form in which this covenant is found is,
“the tenant covenants not to assign, sub-let
Rampersad v Phagoo There was an assignment when the
or part with possession of the demised
assignee moved into the premises despite the absence of a
premises or any part thereof without the prior
formal document evidencing the assignment.
written consent of the landlord, such consent
Must be by deed if the legal estate is to pass to the assignee.
not to be unreasonably withheld.”
As a result, while a periodic tenancy or a tenancy for less than
LANDLORD & TENANT 2003-04
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35
-
Courts tend to construe the covenant against the landlord under
the meaning of the statute as a statutory tenant had only a
the contra proferentum rule. If the landlord wishes to include
personal right of occupation that could not be assigned or
a clause that limits a tenant’s common law rights it is
transferred. Even so the acceptance of rent from a statutory
incumbent on him to do it in a clear and unambiguous fashion.
tenant is prima facie treated as a mere acknowledgement of
If it is unclear the covenant will be construed against the
the tenant’s protected occupation.
Landlord
-
-
Lam Kee Ying v Lam Shes Tong;
Waiver of covenant
If tenant assigns/sublets in breach of covenant the equitable
-
Landlord waives the covenant where he agrees to a single
estate still passes to the assignee / sub-lessee. But the landlord
assignment/subletting without restriction. Such an agreement
is entitled to damages or forfeiture and re-entry if the lease
operates as a total waiver of the covenant for all time. It is a
contains a proviso to that effect. Conveyancing Act
recommended practice when the landlord is giving his consent
If tenant is a company, covenant broken if all the company’s
to state that it is being given for that request only and does not
shares
apply to future assignments/sub-lettings.
or
voting
rights
are
transferred
by
sale/assignment/bequest/trust or other disposition during the
terms of the lease so as to result in a change in the control of
How to apply for a waiver:
the company: Lake v Camacho.
1.
Must apply to landlord for his consent.
Lam Kee Ying v Lam Shes Tong: Plaintiff leased building to
2.
If landlord withholds consent, apply to the court for a
D for 25 years with a covenant not to assign or sublet. D and
partners bought out the tenant company changing its legal
-
-
-

Onus on tenant to show that the assignment is
status. On proceedings for forfeiture for breach of covenant
reasonable so that before tenant applies to the court
Held: breach of covenant since a different legal entity now
he should consider such factors as the character and
occupied as lessee
reputation of the prospective assignee and proposed
Covenant broken where tenant subsequently forms a
use of premises.
partnership having as its place of business the demised
-
declaration permitting the assignment/subletting

Landlord is not entitled to withhold his consent with a
premises. Landlord’s consent will also be required where the
view to gaining some advantage personally which is
tenant is a partnership, which is subsequently dissolved, and
not incidental to his reversionary status. But he is
one partner continues to occupy the premises. However, the
entitled to take into account the possible depreciation
court will not treat a partnership deed per se as an assignment:
of other parts of his estate:
Gian Singh v Devraj Nahar and ors.
Parker v Boggan [held that it was not reasonable for
Covenant ‘not to under-let or part with possession’ is breached
the landlord to refuse his consent to subletting on the
by an assignment: Marks v Warren
ground that the proposed sub-tenant was entitled to
Covenant is also breached where, without consent, the
diplomatic
premises are let to a tenant who already occupied under the
proceedings in English courts]
lessor and to whom no objection could reasonably be taken:
Bates v Donaldson [said that landlord may
Eastern Telegraph Co. v Dent
reasonably object even though the proposed purpose
Covenant is not broken where:
was not forbidden by the lease or by law].
(a)
privilege
and
thus
immune
from
the term is dealt with by executors/administrators or a
NB: In Jamaica it is assumed that landlord is not to withhold his
trustee in bankruptcy or is compulsorily acquired by a
consent unreasonably although there does not appear to be any
public body or is the subject of a bequest; or
statutory provision to that effect unlike Belize, Montserrat or
(b) a licence is granted provided that the tenant is not
Barbados.
entirely ousted from the legal possession or the covenant
(c)
does not include a prohibition against occupancy by
NB: One does not need to consider the question of waiver where
another person; or
the agreement does not contain a provision against assigning, but
the term is used as security for a loan or mortgage; or
the question of statute may come into play nonetheless and the
(d) the term is assigned by one joint tenant to another in the
same joint tenancy
-
question becomes whether the landlord consented expressly or
impliedly.
Note: a statutory tenant cannot assign property as he does not
Duverney v Dass: The tenant of controlled commercial premises
hold an estate – has a statutory right to occupation which
parted with possession without the consent of the landlord . Upon
cannot be assigned/transferred:
finding out he protested but accepted rent nevertheless . Held on
Gayadeen v Glasgow: Statutory tenant, sold the house she
appeal there was no question of waiver of the covenant in the lease
occupied without the landlord’s consent. Landlord accepted
as there was no breach of tenancy agreement.
rent from assignee but signed receipts in assignor’s name.
covenant was implied by statute so the question of consent arose.
Held: no question of giving/withholding consent arose within
The court held it had not been given to the transaction as although
LANDLORD & TENANT 2003-04
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However the
36
rent was accepted from assignee the receipt was in the assignor’s
General Points
name.
-
An option to renew does not make a term longer than that
Bates v Sylvester [Held: by continuing to accept rent from the
originally granted unless the option is exercised: Therefore any
tenant w/o qualification, landlord had by implication acted in such
sub-letting into the extra term without renewal will be an
a manner as to bar himself from alleging that he had not consented
assignment.
to the breaches.]
City Enterprises Ltd v Esso Standard Oil [Appellant leased
land for a term of 20 years with an option to renew. Then
Liabilities upon assignment
granted lease for a term of 20 years with no option to the
-
Assignee assumes all the benefits, burdens and rights of the
“sub-lessee.” Held; was an assignment.]
assignor including the liability for rent to the landlord, but the
Lake v Camacho [Assignment in breach of covenant. Held: By
assignor also continues to be liable for rent unless he is
parting with possession w/o the landlord’s consent, the tenant
released by the landlord and this is so even where the landlord
could not create the relationship of landlord and tenant
has consented to the assignor and accepted rent from the
between the landlord and the assignee. The assignee therefore
assignee.
became a trespasser liable to pay for his use and occupation,
Re: liability upon sub-letting see also section 25 (1) (c) Rent
not by way of rent, for he was not a tenant, but by way of
Restriction Act.
mesne profits. As between the assignee and the landlord, no
A release may be impliedly granted, e.g. landlord enters into
question of unreasonable withholding of consent arose as he
lease with assignee, or landlord and assignee agree to vary the
was not a party to the lease.]
-
-
terms of the lease.
-
A tenant who fails to obtain consent, even if the landlord in the
circumstances could not have reasonably withheld consent,
(ii) Absolute Covenant
-
Tenant has no power to create a legal assignment if the lease is
subject to an absolute prohibition against assignment.
-
will be liable to have the lease forfeited if this is provided for.
If a tenant under a lease containing an absolute covenant
Remedies

wishes to assign/sublet the property, the tenant’s only option is
to negotiate with the landlord to try and gain consent. Landlord
the breach

may grant the consent but there is nothing to stop him from
requiring payment for the granting of this permission.
-
if it says the tenant shall not sublet the demised
Landlord may seek an injunction to prevent the
proposed assignment/subletting

Governed by the words of the covenant
a)
Landlord may sue for damages = loss flowing from
If a right of re-entry has been preserved, bring
proceedings for forfeiture.

If
tenant
feels
that
consent
was
withheld
premises, the prohibition will apply to the entire
unreasonably, he may go to the court to get a
premises but not to the subletting of a part of it:
declaration to that effect.
Cook v Shoesmith [Tenant, without landlord’s
consent sublet some rooms in a building. Held not be
Statutes:
a breach of a covenant phrased in this way]
Rent Restriction Act: prohibition against in the absence of
b) If it provides the tenant shall not sublet the premises
c)
consent or authorisation by the lease: s. 25(l); also Part II (g) of the
or any part thereof, then neither the whole nor a part
first Schedule.
may be sublet.
Registration of Titles: s. 98 – transferee indemnifies transferor re
If the covenant is against subletting or parting with
non-payment of rent and non-observance of covenant.
possession, it will be broken by a tenant if he allows
another person into exclusive possession of the whole
or part of the demised premises, but the grant of a
licence will not amount to a subletting.
Lam Kee Ying v Lam Shes Tong [Held: a covenant
which forbade a parting with possession was not
broken by a lessee who in law retained the possession
even though he allowed another to use and occupy
the premises.]
Thus a provision prohibiting a tenant from parting
with possession of the premises will not prevent the
tenant from taking in a lodger or otherwise allowing
another person to share occupation.
LANDLORD & TENANT 2003-04
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37
 COVENANT TO INSURE
-
-
-
-
-
(b)
If
there
is
an
express
term,
providing
for
At common law there is no obligation on landlord or tenant to
reinstatement – money must be applied in accordance
insure
with that term.
Under the Condominium/Strata legislation there is a
(c)
If landlord covenants to insure at tenant’s expense but
requirement for the corporation or committee to insure the
there is no covenant to reinstate – landlord must apply
complex. Other than this, the parties are free to decide on the
money towards reinstatement: Mumford Hotels Ltd v
matter of insurance.
Wheeler.
Short lease: usually no party insures but when insured, usually
(d)
If the landlord is obliged to insure at his own expense –
its the landlord that does this at his own expense,
submission that landlord must apply money towards
Long lease: usual to have covenant to insure which may be
reinstatement (b/c the obligation is intended to inure to
placed on either party, particularly the tenant.
the benefit of both parties).
If tenant has obligation to insure, he must arrange the
insurance and pay the premium.
(e)
This covenant will be
If both tenant and landlord are liable to insure – loss will
be apportioned between the 2 policies.
breached at any time that whole premises or any part is
-
uninsured irrespective of whether damage occurs.
Note the following:
Sometimes landlord insures the premises and recoups this
-
from tenant. However this may be contrary to the section
24(1) Rent Restriction Act if it will result in an amount that is
-
Basic insurance covers fire. Additional risks have to be
covered by supplemental perils endorsement
-
Coverage should be for the full replacement value because the
in excess of the standard or controlled rent.
average clause provision will be applied. Therefore the parties
Much depends on the wording of the covenant:
should be advised that they should have an appraisal done at
(a)
if the covenant is to insure with a named company or
the beginning of the term, and at reasonable intervals
other company approved by the landlord, the landlord
thereafter.
can refuse to approve any company other then the
-
A breach of this covenant is a continuing one and so
named company without giving a reason: Viscount
acceptance of the rent by the landlord where tenant is in breach
Tredegar v Harwood.
only operates as a waiver up to the time of acceptance.
Tenant covenanted to insure property with a
particular company.
another
Remedy: Damages for the actual loss incurred.
Landlord refused to approve
insurance
inconvenience.
-
company
because
of
Held: Landlord’s consent was a
condition precedent and could refuse consent without
a reason
(b)
if the covenant is to insure with a named company
and the tenant enters into a usual policy with certain
risks excluded with the named company, the tenant is
not liable if there is a loss within one of the
exceptions: Upjohn v Hitchens.
Tenant covenanted to insure against loss from fire
and insured.
However Landlord wanted policy
extended to include loss from fire from enemy
aircraft. Held: the covenant was to effect the usual
policy and there had been no breach.
(c)
where the landlord covenants to insure, but requires
the tenant to pay the premium, there is no implied
term that the premium will be reasonable: Bandar
Holdings v Durwen.
Reinstatement
-
If the demised premises suffer damages for which it has been
insured, the position is as follows:
(a)
If landlord/tenant takes out a policy w/o being obliged to
do so – not liable to spend the insurance money on
reinstatement.
LANDLORD & TENANT 2003-04
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38
4. DISTRESS
(a) wearing apparel and bedding of the tenant and his family
and, to the value of $50, the tools and implements of his trade.
BELIZE
Note that this does not apply where the lease has expired and
Landlord and Tenant Act Cap. 153
possession is claimed and the distress is not made earlier than
-
Landlord has, as an incident to his reversion, a right to distrain
7 days after the demand
for arrears of rent upon certain goods found upon the premises
(b) re agricultural/grazing land:
-
General common law rule is that all personal moveable goods
(i) agricultural or other machinery belonging to another
on the demised premises are subject to distress:
if on the premises under an agreement for hire or use
Crossley Bros. Ltd v Lee [A gas engine was affixed to the floor
in the conduct of the business
of the premises by bolts and screw and was used for the
(ii) live stock belonging to another and on the premises for
purposes of trade. The engine was seized for distress for rent
breeding purposes
due. Held: the engine had become a fixture and therefore was
(iii) live stock belonging to another and taken in by the
not distrainable.]
tenant to be fed at a fair price where there is other
sufficient distress. Note that there if no sufficient distress
Requisites for distress
then there shall not be recovered for distress a sum
-
The r/ship of landlord and tenant must exist.
exceeding the amount of the sum agreed to be paid for the
-
No need for a formal lease as the principle in Walsh v
feeding or any part that remains unpaid.
-
Lonsdale applies – mere agreement with possession. Right
s. 44:
extends to a tenancy at will but not one at sufferance. In the
-
latter, the remedy is one for use and occupation.
seized are not those of an under-tenant or lodger) distrains any
The reversion must be in the person distraining for rent unless
furniture, goods or chattels belonging to any under-tenant,
exempted by agreement or statute:
lodger or other person who does not have an interest in the
Lewis v Baker [Held: If a lessee with an original lease and a
land then such person can serve a written declaration on the
reversionary lease or an agreement therefor under-lets the
landlord or his bailiff.
premises for a term exceeding the original lease, he cannot
-
If a superior landlord (which includes a landlord if the goods
-
The declaration must:
distrain for rent during the original lease under the common

have a properly signed inventory of the goods annexed to it
law for want of a reversion.]

state that the tenant has no property or beneficial interest in
The rent must be certain both in amount and the terms of
the goods

payment. Note that the mere fact that the rent fluctuates having
regard to an accepted formula does not necessarily make it
possession of the declarant

uncertain.
-
The rent must be in arrears: s. 36 – tenant may recover double
state that the goods are not goods/livestock protected by
the Act

the value of the rent that was claimed and distrained for within
3 months after the date of the distress.
-
state that the goods are the property or are in the lawful
confirm the amount of rent due from the subtenant/lodger
to his landlord and the times that future rents will be due

If the rent is payable in advance then the rent is in arrears as
soon as the period for which it is payable commences: s. 28
contain an undertaking that the declarant will pay to the
superior landlord all the rents due or to become due until
the arrears distrained are paid off.
Goods that cannot be distrained
Common Law

Things of a perishable nature
Note:

Loose money but not money in a bag/chest
-

Fixtures including a chattel house if it is adjudged to be a
declaration and the rent has been paid in accordance with the
fixture
undertaking, then an illegal distress would have occurred –

Things in actual use
declarant may apply to court for restoration of the distrained

Property delivered to a person in public trade to be used in the
goods.
exercise of his trade

Property in the custody of the law

Property belonging to the Crown

Property belonging to persons enjoying diplomatic privilege
Statute
s. 35:
LANDLORD & TENANT 2003-04
-
where the superior landlord distrains after receiving this
the superior landlord may serve a notice on the under-tenant
requiring all future rents to be paid to him where the
immediate tenant is in arrears until such arrears have been paid
off: s. 49
The following goods are not protected under the above section:
s. 47

goods belonging to the husband or wife of the tenant where the
rent is in arrears
Page 38 of 47
39


goods in the possession, order or disposition of the tenant with
-
if bailiff not certified then bailiff and the person who has
the consent of the true owner, but under such circumstances
authorised him to levy shall be deemed to have committed a
that the tenant is the reputed owner of the goods
trespass and are guilty of an offence: s. 41(5)
goods comprised in a bill of sale , hire purchase agreement or
-
goods may be sold at public auction after appraisal for amount
settlement made by the tenant
due with surplus left in the court for owner’s use if the tenant

certain livestock to which s. 35(b) applies
or owner of the goods does not, within 5 days after distress or

goods of a partner of the immediate tenant
such period not exceeding 15 days as the landlord or other

goods (not being goods of the lodger) upon the premises where
person levying distress may grant at the tenant’s request and
any trade or business is carried on in which both the immediate
after notice is given by the landlord to the tenant, reply the
landlord and the under-tenant have an interest
goods with sufficient security: s. 42

goods (not being goods of the lodger) upon premises used as
offices or warehouses where the owner of the goods neglects
Applicable to both
for a month after notice to remove the goods and vacate the
-
of the landlord or his agent, may break open in the daytime
premises

any place where the goods are locked up or whither they have
goods belonging to and in the offices of any company/
been fraudulently removed, but if that place is a dwelling
corporation on premises in the immediate tenant where he is
house, the landlord or his agent shall first satisfy the magistrate
the director/officer/in the employ of such company/corp.

by sworn testimony that there is reasonable ground to suspect
goods belonging to any under-tenant where the under-tenancy
that the goods are concealed in it: s. 30
was created in breach of any covenant in writing b/n the
landlord and his immediate tenant: s. 48
The police officer or bailiff, under warrant and in the presence
-
Persons involved in the fraudulent removal of goods liable to
forfeit to the landlord double the value of the rent: s. 31
-
at common law there are certain goods that may be distrained
-
removed: s. 32
for where there is an insufficiency of other goods: tools of a
man’s trade/profession even though they are not in actual use,
-
Below $BZ 600:
-
Seizure, Impounding and Sale
-
magistrate issues warrant authorising any police officer/bailiff
he intends to prevent its removal from the premises
-
-
distrain between 8 a.m. & 4 p.m.: s. 29(2)
-
if sufficient goods not found then police officer/bailiff may
distrain any goods fraudulently carried off the tenement to
prevent the landlord from distraining the rent in arrears
the amount owed and the authorised fees and charges.
-
-
Illegal - where it is wrong ab initio e.g. where the landlord
does not have the reversion when distress is illegal, a 3rd party
who buys the goods distrained is not protected.
carrying off unless they’ve been sold to innocent 3rd party: s.
-
Notice of the distress should be given to the tenant.
Illegal, Irregular and Excessive Distress
wherever they are found within the space of 30 days after such
29(3)
B/n seizing and impounding the distrainor should draw up an
inventory of the goods distrained and include the particulars of
presence: s. 29(2)
-
After the goods have been seized they must be impounded, the
effect of which is to place them in the custody of the law
to enter, and if necessary to break open the tenement in respect
of which the rent is due, to distrain in landlord/agent’s
For distress to be complete the goods must be seized – actual
seizure or the distrainor laying his hands on it and states that
7 days after it becomes due then the landlord or his agent may
go before a magistrate and make a sworn claim: s. 29(1)
-
Question: whether the common law rules re entry are
applicable in light of this provision
beasts of the plough and sheep and instruments of husbandry.
Method of Distress
Police officer may detain furniture being clandestinely
-
Irregular - distress is initially lawful but by some act or
omission it then becomes irregular e.g. where goods sold
Goods distrained shall be sold at a public auction at the
before the expiration of 5 days. The tenant may go to the court
expiration of 5 days after the distress unless the tenant or
to recover any special damage suffered therefrom where
owner of the goods distrained replevy them: s. 34
amends have not been made before the action is brought: s. 38
-
Excessive - more goods are seized than the amount needed to
cover the rent due.
Francis v Daley [ The appellant levied a distress for rent
Above $BZ600
-
Only landlord or certified bailiff may distrain: s. 41(2)
claiming an amount for $4 owing for rent when in fact only $2
was owing. Held: mere fact that goods were distrained for an
amount of rent in excess of the amount actually due is not per
se evidence that the levy was excessive in the strict sense of
the word, and will not give rise to a cause of action if the
LANDLORD & TENANT 2003-04
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40
goods seized were not disproportionate to the amount actually
owed.]
Remedies for tenant
-
damages – tenant can sue landlord for the loss sustained.
-
Where no rent due: s.36
-
Replevin (s. 34) If distress illegal– tenant may bring an action
for replevin (this is a remedy which entitles the owner of the
goods distrained to recover them). Replevin must be exercised
before actual sale. If the goods are sold before replevin the
proper remedy is by an action for damages for wrongful
seizure.

tenant should serve notice to this effect to the bailiff
and at the same time deposit the amount of rent due
$25 as security for costs

tenant should sign an act of deposit or, in lieu of
deposit, enter into a recognisance with at least one
sufficient surety to the satisfaction of the magistrate.
Then the bailiff shall return the goods.

If the replevisor succeeds in his action – sum
deposited for the amount of rent shall be paid over to
him as well as costs

If the defendant succeeds- the court shall find the
value of the goods so distrained and judgement will
be given for the amount of that value if it does not
exceed the amount of rent for which the distress was
made.

Where the amount of the value so found exceeds the
amount of the rent, the judgement shall be given for
the amount of the rent, and the replevisor shall pay
the costs to which the defendant has been put, or such
costs as are awarded by the judgement and the
judgement with the costs shall be satisfied out of the
sums so deposited.
-
distress may be made within 6 months after the lease has been
determined where the tenant is one for years or yearly or at
will and during the continuance of the landlord’s title and
during the possession of the tenant from whom such arrears is
due: s. 40
Second distress
Generally, a landlord cannot distrain twice in respect of the same
rent and this includes the case where the landlord has voluntarily
abandoned a first distress, Where, however, there are insufficient
goods on the 1st distress or a landlord is prevented from realising
the levy by a tenant, the landlord may be allowed to make a 2 nd
distress.
LANDLORD & TENANT 2003-04
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41
5. RENT RESTRICTION ACT
-
rent is deemed as increased if the landlord changes the
Applies to “controlled premises” i.e. building land, dwelling
circumstances referable to the shared accommodation and the
houses, public and commercial buildings let furnished or
alteration is less favourable to the tenant
unfurnished
-
-
-
Note exemptions (s. 3(1)):
(a)
dwelling houses let at a rent which bona fide includes a
It is a criminal offence if the landlord receives rent in excess of
the standard rent : S.20(3)
-
payment for board
if the landlord or tenant objects to the standard rent, either
may, within 60 days, apply to the Rent Assessment Board for a
(b) building land let on a building for a term of 25 years or
review of the rental assessed: s. 19A(3)
more
(c)
dwelling houses let by the Ministry of Housing pursuant
Increases in Rent
to the Housing Act
-
the rental can be increased if

(d) any class of premises specified by the Minister in an
(e)
order
substantial improvements (Couch v Morrison) or
a public or commercial building that exceeds 1000 sq. ft.
structural alterations to the premises or to the
and is primarily designed to be used as a warehouse (see
amenities and in the case of improvements, a period
the provision in the Act itself as it contains more detail
of 2 years must have elapsed, or

which I thought was essentially irrelevant.)
-
the landlord has incurred expenditure in effecting
there has been an increase in the rates and taxes but
Note the requirement for exemption: to be legally outside the
the increases have to be certified by the Assessment
operation of the act the premises 1st have to be certified by an
Officer: s.21(1)
Assessment Officer on an application for a certificate of
-
exemption by the landlord.
Recovery of Excess Rent
The provisions of the Act also apply to sub-tenants whether of
-
apply to the Rent Assessment Board or the court
the whole or part of the demised premises.
-
right to appeal to the Court of Appeal from the Board on
questions of law and mixed questions of law and fact
Determination of Rent
-
-
the landlord may require from the tenant reimbursement for
Standard rent (maximum chargeable) arrived at on assessment
sums paid by him for water, electricity, gas or other services or
by an Assessment Officer, to whom application has been made
such sums for these services as are known or reasonably
by the landlord. Until such assessment, standard rent = rent at
estimated by the landlord to have been used or enjoyed by the
which the dwelling house was let on July 1, 1976 + such
tenant:s.24(3)
increases as were sanctioned by the Rent Assessment Board
-
-
after that date – section 17
Implied Covenants
Note that the standard rent is not mandatory, just the

maximum, and the parties may negotiate a lower rental
Landlord:
First Schedule

If the landlord fails to apply to have the rental determined the
tenancy is still valid though he is guilty of an offence under the
and to observe reasonable standards of maintenance
Act.
-

Standard rent:
Quiet enjoyment so long as the tenant is paying rent
and fulfilling obligations

Building land: 5%

Pay all rates/taxes payable by him on time

Unfurnished dwelling house: 12 ½ % of the value of

Indemnify tenant from any loss arising from any act,
the building + 5% of the value of the land

Furnished dwelling house: 12 ½% of the value of the
building + 5% for the land + 20% for the furniture


negligence default of landlord or agents
Tenant:

Public and commercial buildings let unfurnished:
Keep premises in good order, fair wear and tear
excepted
15% of the value of the building + 5% of the value of

Pay rent on due date
the land

Refrain from acts of nuisance/annoyance to adjoining
Public and commercial buildings let furnished: 15%
of the value of the buildings + 5% of the value of the
occupiers and keep place sanitary

land + 20% of the value of the furniture
-
To keep the premises in a tenantable state of repairs
Refrain interfering with trees or damaging premises
w/o consent
in the case of dwelling houses divided into separate lettings,

Avoid waste
each accommodation let is deemed a separate dwelling house

Permit landlord to enter premises to inspect and
repair

LANDLORD & TENANT 2003-04
Not to part with possession w/o consent
Page 41 of 47
42

Notify the landlord about rent arrangements if tenant
-
25(2)
has to vacate property and rent is owing
-
-
Court can extend the period given by it for possession: s.
Landlord required to keep rent book – contains relevant details
criminal offence for landlord to make it a condition of the
of the tenancy and payments made to landlord by tenant re
dwelling house that no children should reside therein: s. 4A
rent. Failure to keep this book = criminal offence: s. 29
The landlord may apply to the Rent Assessment Board or the
-
Landlord also guilty of an offence if he forcibly removes the
Court to recover rental which has been overdue for more than
tenant from the premises or does any act calculated to the
30 days (s. 25(a) ), and at the hearing of the matter the Court
interference with the quiet enjoyment or does anything to
or the Board may order the tenant to pay the amount due up to
compel the tenant to deliver up the premises: s. 27(1)
-
that time.
If landlord obtained order by misrepresentation or concealment
of material facts then the court may order damages to be paid
to the tenant: s. 25(6)
Termination of the Tenancy
-
the tenant cannot be evicted from the premises except by a
court order for recovery of possession: s. 27
-
application for possession made either by writ in the Supreme
Court or by Plaint in the Resident Magistrate Court, Civil
Division.
-
Notice to quit must be given in writing by the landlord and
must state the reason for the requirement to quit: s. 31(1)
-
Note that if the reason given in the notice is that rental is
overdue and the amount is paid by the tenant before the expiry
of the notice, then the notice ceases to have effect from the
date of payment: s.31(2)
-
Where tenant fails to give notice – landlord may bring an
action to recover rent for notice period.
-
Please note the reasons where a court will grant an order
in SECTION 25. Ones of special importance:

Rent overdue (a)

Tenant has broken some obligation and has been
in default for at least 30 days (b)

Tenant/his
sub-tenant/lodger/person
residing
with him convicted of using premises for
illegal/immoral purpose this is also found in the
Second Schedule section 1(a) of the Strata Titles
Act) ; cause nuisance/annoyance to adjoining
occupiers; premises deteriorated or unsanitary
owing to acts of waste (c)

Assign/sub-let/part
with
possession
without
landlord’s consent in the absence of a provision
to do so (l)

Uses premises intended for dwelling purposes
mainly for trade or business with landlord’s
consent or authorisation under the lease (m)

Dwelling house let as incident of employment
(p); (q)
-
whenever the ground on which the premises are required is
that the landlord requires it for his own purposes or for a
person wholly dependent on him or for the purposes of being
rebuilt/repaired, the Court must further be satisfied that less
hardship would be caused by granting the order for possession
that by refusing to grant it. Relevant considerations –
alternative housing for landlord or tenant : s. 25(1)
LANDLORD & TENANT 2003-04
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43
RE-ENTRY AND FORFEITURE

for the exact sum due
-
At common law there is no implied covenant for re-entry and

on the day it falls due
forfeiture for non-payment of rent or breach of covenant.

at the demised premises
-
Remember distinction between covenant and conditions.
Breach of latter entitles landlord to re-enter whether or not the
-
lease contains a forfeiture clause. “Provided always” or “upon
No formal demand needed where the lease states that it is not
needed.
condition that” sometimes construed as giving rise to a
condition.
Relief Against Forfeiture For Non-Payment Of Rent
-
Courts construe forfeiture clauses in favour of the tenant.
-
-
Note that the tenant’s breach does not entitle tenant to
tenant, before the return date of a summons issued by the
determine the lease but makes it determinable by the landlord
court, pays into court all the rent in arrears or a sum sufficient
at his option.
to cover any damage for a breach of covenant, the action
If the landlord decides to forfeit the lease he may actually go
thereafter ceases.
-
Section 87 Judicature (Resident Magistrates) Act: if the
onto the land OR institute proceedings for recovery of
possession.
-
-

If landlord decides to re-enter premises then he cannot do so
-
-
Before landlord can enforce his right to re-enter, he must
forcibly: Statutes of Forcible Entry.
serve the tenant with a notice specifying the breach and,
Normal method of enforcing a right of re-entry is by issuing
where possible, request the remedy of the breach or/and
proceedings claiming possession of the premises.
compensation in money and a reasonable time should be
Plaint/writ must contain an unequivocal demand for possession
given to remedy/pay: s. 17(1)

to operate as an effective re-entry.
-
Section 17 Conveyancing Act:
Lease is at an end from the date of service of the plaint/writ.
Once a valid notice has been given, the landlord may then
start proceedings for forfeiture of the lease. It the tenant is
required to remedy the breach, however, it is only at the
expiration of the period given to do so that the proceedings
The Effect of Forfeiture

Lease comes to an end
can be started and only if the tenant has failed to remedy

Any existing under-lease also determines
the breach.

Landlord can only claim rent due before the forfeiture and

remedied – i.e. a once and for all breach such as sub-
thereafter his claim is for mesne profits

letting.
Right of re-entry is no longer capable of being waived

-
Note that there are breaches that are incapable of being
Note that the Court has power to order an injunction to
It is a prerequisite for waiver that the landlord knows of the
restrain any breaches, whether committed by the landlord
breach.
or tenant: s. 17(2)
-
Knowledge may be actual or constructive
-
Examples of waiver:

where landlord demands or accepts rent due after the breach

where landlord distrains for rent

where landlord expressly consents to the breach

where the landlord accepts rent “without prejudice”

Note that the tenant has a right to apply for relief against
forfeiture: s. 17(2)

Note the exceptions to this section set out in s. 17(6):
(a) mining leases which contain a covenant/condition for
allowing the lessor to have access to or inspect books,
accounts, records, weighing machines or other things,
or to enter or inspect the mine or the workings of it.
(b) A covenant or condition against the assigning,
Types of Breach
-
subletting, parting with the possession or disposing of
If there is a waiver of a single act the right to forfeit for that
the land leased.
breach is permanently lost. However, with respect to a
(c) A condition for forfeiture on the bankruptcy of the
continuing breach, if there is a waiver on one day a fresh right
lessees
of forfeiture will arise on the day after the waiver because the
(d) The taking in execution of the lessee’s interest
breach continues from day to day.
-
At common law, a landlord could only forfeit a lease for nons. 17(7) states that S.17(6) does not affect the law relating
payment of rent if he had made a formal demand for the rent
to non-payment of rent.
due. If no formal demand made then no forfeiture possible.
Formal demand:
-
Has to be made

by the landlord/authorised agent
LANDLORD & TENANT 2003-04
-
Section 96(b) Registration of Titles Act: landlord may reenter upon land and take possession of the property where the
tenant has been in arrears of rent (whether or not there has
Page 43 of 47
44
been a formal demand) or has breached covenants for more
than 1 month.
Look at the 2 cases briefed at the back of the handout.
LANDLORD & TENANT 2003-04
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45
7.
OPTIONS
-
It usually takes the form of a covenant by the landlord that if
There are 3 types of options that can be contained in a lease:
the tenant, within a specified period, gives to the landlord
-
an option to renew
notice in writing of his intention to purchase the landlord’s
-
an option to determine
interest in the premises the landlord shall, on payment of the
-
an option to purchase
purchase price and of any arrears of rent, convey his interest to
However the absence of any of these options does not make the
lease bad.
the tenant.
-
Such an option is collateral to, independent of and not a part of
the relationship of landlord and tenant
OPTION TO RENEW
-
-
-
-
Further the option does not constitute a contract because until
It is not uncommon in fixed term leases to include an option to
it is exercised, neither party is obliged to purchase or sell.
renew, particularly when the period fixed is a fairly short one
Griffith v Pelton
e.g. 1 – 5 years.
-
-
-
An option to purchase is in the nature of an irrevocable offer to
Such an option gives the tenant the right to continue the lease
sell and upon the exercise of the option a binding contract for
for a further term which may be for a greater, lesser or the
sale arises and the relationship of vendor and purchaser is
same period as before Wong v Calneck
created
Normally such an option will be worded so that the new lease
-
An option to purchase does not run with the land
excludes the option itself. If the option to renew does not
-
Any matters, which by the terms of the option are made
exclude the option itself the lease may be perpetually
conditions precedent to its exercise must be strictly observed
renewable. The rule against perpetuities does not apply in this
e.g. the notice must be given within the time specified and the
situation. Parkus v Greenwood
purchase price paid in the manner prescribed. However strict
A properly drafted option to renew is usually made expressly
compliance with the terms of the option may be waived.
dependent upon the tenant complying with all the covenants in
Robertson v Surbiton Property Development Ltd. The
the lease. So that if there is a breach of any covenant, no
plaintiff was to exercise an option to purchase on not less than
matter how minor, the tenant will be unable to exercise the
6 months notice. Held: options must be exercised strictly and
option. E.g. West County Cleaners Falmouth Ltd. v Saly
here it was served out of time so it was not validly exercised.
Usually the option to renew will state at what time or within
-
The terms of the option usually require that it is exercised in
what period the option shall be exercised and will require that
writing. But even if this is not so stated, it is implied, since the
it be given by written notice. If the option does not state the
resulting contract will be binding on both parties.
terms of renewal the new lease will be for the same period and
on the same terms as the original lease. Brown & Gould &
Caribbean Asbestos v Lopez
OPTION TO DETERMINE
-
a lease for a fixed term may give either party the right to
determine the lease at an earlier time or on the occurrence of a
specific event e.g. where the tenant is a diplomat – in the event
he is recalled or declared persona non grata. Such a provision
does not negative the principle of certainty in leases generally.
-
Sometimes called a break clause,
-
The exercise of this option will depend on its precise terms – if
e.g. the terms of the option require that the tenant shall have
paid all arrears of rent and performed the covenants on his
part, such payment and performance are a condition precedent
to the exercise of the option and must be carried out. Since the
exercise of the option by the tenant avoids the covenant to pay
the rent during the residue of the term, the requirements of this
proviso conferring the option must be strictly observed.
OPTION TO PURCHASE
-
An option to purchase is a term that gives the tenant the
opportunity to buy the landlord’s interests in the demised
premises. It is NOT the same as a 1st refusal to purchase.
LANDLORD & TENANT 2003-04
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46
8. TERMINATION
effective if it takes effect either on January 1st or December
Methods of termination:
31st.
I.
effluxion of time
-
II.
by exercise of option to determine
a tenancy began and thus difficult to know when a notice to
III.
by operation of a condition subsequent
quit should take effect.
IV.
by merger of the lease and reversion
V.
by surrender
following general words after specifying the date on which it
VI.
by disclaimer i.e. by trustee in bankruptcy or
is believed that the tenancy expired: “or at the end of the
liquidator
year/month/ quarter of the tenancy which will expire next after
VII.
by forfeiture
the end of half year/month/quarter from the date of the service
VIII.
by reason of compulsory purchase
of this notice.”
IX.
POSSIBLY by frustration
X.
by notice to quit
-
It is sometimes difficult to ascertain the precise date on which
To avoid the error of an incorrect date, it is usual to include the
Form of the notice
-
The notice must be clear and unambiguous, though it need not
NOTICE TO QUIT
be in any specific form unless required by the terms of the
-
Most common method use to determine tenancies
tenancy or by statutory provisions.
-
May be served by either the landlord or the tenant
-
In the absence of an express term in the lease, or statutory
relate to the whole premises e.g. the demise relates to
provisions the period of notice is determined by the common
commercial and residential premises or where parts of the
law rules
premises are let.
-
Neither party can deprive himself permanently of his right to
-
-
serve a notice to quit. It is, however, open to either party to
Must not be conditional e.g. upon not paying rent and must
It may be oral, although this is inadvisable because of
evidential problems that may arise.
limit their right to serve a notice to quit provided that they do
-
not permanently deprive themselves of this right.
Service
In the absence of any contrary provision,
-
I.
a yearly tenancy is determinable on 6 months
immediate tenant or by the tenant to his immediate landlord or
notice;
the authorised agent of either
II.
quarterly tenancy on ¼ notice
-
In the case of joint tenants, notice to one binds all.
III.
monthly tenancy on 1 month’s notice,
-
May be given by ordinary post or registered post or by
IV.
weekly tenancy on 1 week’s notice
personal service or as otherwise prescribed by the lease.
-
Statutory provisions
-
The Conveyancing Act S 71 makes provision with respect to
the notice to be given under the statute
-
the notice to quit must be given by the landlord to his
Notice may be served on the spouse or employee provided it is
made clear to the recipient that the notice is to be delivered.
-
If the notice is left by the landlord on the premises it must be
shown that it came to the attention of the tenant in time
The Law Reform (Landlord & Tenant) Act S. 4 and the
Agricultural Small Holdings Act s. 20 cover a situation where
there are growing crops. In such a situation, because such a
long period of notice is required, notice is usually given as
soon as the lease is executed, usually at the beginning of a 5
year lease
-
S. 26 of the Rent Restriction Act governs the extent of the
period of notice for business lettings where S. 25 does not
apply
-
The way the notice to quit is drafted is very important. If
incorrectly drafted, it is invalid. RRA S. 31
Expiration
-
At common law the notice must expire at the end of a period
of tenancy. If this requirement is not met then the notice is
bad.
-
The courts have construed the end of the period to include the
anniversary of the commencement of the tenancy. E.g. if a
yearly tenancy began on January 1st a notice to quite will be
LANDLORD & TENANT 2003-04
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47
CONDOMINIUM/STRATA
-
The words apartment (or flat) represent the more formal legal
terms of condominium or strata lot unit
-
They both represent a unit which forms only part of a building,
which is usually, though not always self-contained and on a
single level. The building may be a large house converted for
the purpose or a multi-storied building designed for the
purpose.
-
A number of easements will be created because:
I.
an apartment forms only part of a building its
satisfactory enjoyment demands the use of ancillary
rights over the property. Ideally, the rights should be
expressly granted so that their adequacy can be
expressly established.
II.
Similarly the apartment will need to be subject to
rights in favour of others which should also be clearly
expressed.
-
Where a lease does not set out the relevant easements these are
implied by statute, specifically the Registration of Strata Titles
Act in Jamaica
-
However, in addition, provision should be made for access,
storage, parking, postage, fixtures, fittings and other common
facilities e.g. laundry, swimming pool etc.
-
How these will be treated in the lease will depend on the type
of facilities which exist in the complex
By-Laws
-
Except in the case of St. Kitts-Nevis, the condominium strata
legislation contains in the schedule a standard set of bye-laws.
But these may be replaced or amended by the strata
corporation under express statutory power to do so.
-
An attorney representing a tenant in such premises must
inquire of the proprietor/landlord if there are special by-laws
or statutory ones are in use. They can vary a great deal.
-
Whatever form they are in they can be amended, changing the
rights of the tenant without his involvement. Yet the tenant is
still bound by them. The question then arises whether they
should be attached to the lease or whether provision for their
change should be made in the lease.
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