Christiane R. Dookie
Landlord &Tenant
Christiane R. Dookie
Contents
Unit 1: Creation Of Leases ....................................................................................................... 4
What Is A Lease? ...................................................................................................................5
Creation Of A Lease ............................................................................................................. 8
Characteristics Of A Lease .................................................................................................. 12
Distinction Between A Lease And A Licence ..................................................................... 38
Types Of Tenancies .............................................................................................................42
Formalities For A Valid Lease (Fixed Term Lease In Excess Of 3 Years) ......................... 46
The Doctrine Of Walsh V Lonsdale: Specific Performance .............................................. 53
Part Performance ................................................................................................................. 57
Notes On Contents Of Leases .............................................................................................63
Unit 2: Covenants Of Landlord &Tenant ............................................................................... 71
Landlord’s Covenants .......................................................................................................... 72
1: Covenant For Quiet Enjoyment ................................................................................... 73
2: Non-Derogation From Grant ...................................................................................... 88
3: Warranty Of Availability And Fitness For Human Habitation ................................. 99
5: Covenant To Renew The Lease (Option To Renew) ................................................. 110
5: Covenant To Grant An Option To Purchase The Reversion ..................................... 117
Tenant’s Covenants ............................................................................................................ 123
1: Covenant To Pay Rent ................................................................................................. 123
2: Covenant With Respect To User ............................................................................... 128
3: Covenant Not To Commit Waste .............................................................................. 148
5: To Keep Premises Insured ..........................................................................................152
6: To Pay Rates And Taxes ..............................................................................................155
7: Covenant With Respect To Alterations And Improvements ................................... 156
8: Covenant To Repair ................................................................................................... 159
Unit 3 – Distress ..................................................................................................................... 191
I: Meaning .......................................................................................................................... 192
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II: Requisites To The Right To Distrain............................................................................ 193
III: What May Be Distrained ............................................................................................. 195
IV: Place Where Distress May Be Made .......................................................................... 204
V: Proceedings On Distress............................................................................................... 210
VI: Second Distress ............................................................................................................ 225
VII: Rescue And Poundbreach .......................................................................................... 226
VIII: Illegal, Irregular And Excessive Distress ..................................................................229
IX: Replevin........................................................................................................................ 234
Unit 4: Determination Of Tenancies & Recovery Of Possession........................................ 237
Surrender ........................................................................................................................... 238
Merger ................................................................................................................................ 257
Notice To Quit .................................................................................................................. 260
Forfeiture ........................................................................................................................... 279
Summary Ejectment Proceedings ..................................................................................... 297
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Unit 1: Creation of Leases
Upon completion of this unit, students should be able to:
•
Identify, and analyse the essential characteristics of (a) a lease and (b) a licence;
•
Distinguish between a lease and a licence to occupy or otherwise use premises and apply
this knowledge in advising a client on whether they are a tenant or a licencee;
•
Define the different types of tenancies and to distinguish them;
•
State the various means by which tenancies can be created;
•
Detail and analyse how legislation in each of their jurisdictions affect the creation of a
valid lease;
•
Explain and analyse the implications of the failure to comply with the legislative
requirements of a valid lease;
•
Explain an agreement for a lease, and explain its relation to the equitable remedy of
specific performance and the doctrine of Walsh vs Lonsdale.
•
Explain what is an equitable lease and how it is created;
•
Explain the effect of an oral agreement for a lease or a legally unenforceable agreement
for a lease;
•
Outline the equitable doctrine of part performance and distinguish between the two
tests laid down in Steadman v Steadman and Wakeham v Mackenzie.
•
Distinguish between the application of the doctrine of Walsh v Lonsdale and the
doctrine of Part Performance.
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WHAT IS A LEASE?
•
“A lease or tenancy is a contractually binding agreement not referable to any other
relationship between the parties, by which one person gives to another the right to
exclusive occupation of the land for a fixed or renewable period or periods of time in
return for periodic payment of money.” Per Blackburn J, in London Borough of
Islington v Green and anor [2005] EWCA Civ 56.
•
It is also referred to as a “term of years absolute” and creates an interest in the land. See
legislation in Barbados Property Act Chap 236.
•
Prior to the Law of Property Act 1925 (UK) the tenant was not entitled to retain
possession of the property in dispute but could only seek damages. A lease only gave
the lessee/tenant, the right to a personal action against the lessor/landlord. With the
passing of the Act, the tenant, in addition to seeking damages, could now bring an
action for possession of the property.
•
Leases may also be reversionary or future i.e., taking effect from a later date fixed for
commencement. Note however, the doctrine of interesse termini. This doctrine arose
from a lease originally being regarded as a personal contract between the parties. A
lease now has the status of being an estate in land. In order to create such estate
however, it is necessary for the lessee to enter and take possession of the demised
premises. Until such time as the lessee enters into possession, he only has a right known
as an interesse termini or an “interest in the term.”
•
See Doe d Rawlings v Walker 108 ER 41.
o A was lessee of premises for a term of twenty-one years, which would expire at
Michaelmas, 1809. In December 1799, A took a further lease of the same premises
for sixty years, to commence from Michaelmas, 1809. The lessor died in December
1800, and devised the premises in question to A, the lessee, for his life.
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o By lease and release, A, in 1806, conveyed his life estate to B: Held A’s interest in the
lease of 1799 which was to commerce in 1809, was not merged in his estate for life.
•
A holder of a mere, interessee termini is unable in law to maintain an action for trespass
as possession is necessary in order to maintain such an action. He is similarly unable to
maintain an action on a covenant for quiet enjoyment where the alleged breach relates
to disturbance of possession.
•
See Coe v Clay 130 ER 1131
o He who lets, agrees to give possession, and if he fails to do so, the lessee may recover
damages against him, and is not driven to bring an ejectment.
o The Defendant had agreed to let the Plaintiff certain premises par verba de praesenti;
and this was an action for not letting him into possession, which, a preceding
occupier having wrongfully refused to quit, the Defendant was unable to effect. At
the trial before Vaughan B., last Cambridge assizes, the agreement having been
proved, it was objected on-behalf of the Defendant, that the Plaintiff had shown no
breach, for that the agreement amounting to an actual demise of the premises, the
Plaintiff had an interest upon which he might have brought an ejectment, and it was
no default in the Defendant, if a person not claiming under him committed a wrong
for which the Plaintiff had a distinct remedy by ejectment. Supposing the law to be
otherwise, everyone who made a new demise would be liable to damages if an
obstinate tenant held over.
o A verdict, however, having been found for the Plaintiff, Peake- Serjt. moved to set it
aside on the grounds urged at the trial; but The Court were all clearly of opinion,
that he who lets, agrees to give possession, and not merely to give a chance of a law
suit; and the breach assigned, being, that the Defendant did not give the Plaintiff
possession, a rule was Refused.
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•
Jinks v Edwards 156 ER 1045.
o Where a landlord agrees with a tenant to let premises and the agreement contains
words of present demise so as to amount to a lease, not merely an agreement to let
or grant a lease of the premises at a future time, the landlord is bound to give
possession of those premises to the tenant.
•
An interessee termini is capable of being transferred or granted to another and devolves
on death like an estate in real property.
•
The doctrine has been abolished in England (s. 149(2) Law of Property Act, 1925 [UK])
and in Guyana and Barbados (Guyana Ch 61:01 s 13, Barbados Property Act, 1979, s 156).
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CREATION OF A LEASE
A lease may be created by:
i.
Express Grant/Demise
•
Where created for periods in excess of the formal legislative requirement (in
most jurisdictions 3 years) it must be done by deed and where not formally
required, it can be done in writing by lease agreement.
ii.
By Implication
•
There are certain circumstances from which a lease be implied having regard to
the acts of the parties. Examples of these can be found in circumstances where
the parties have not complied with the formal requirements for the creation of a
lease.
•
Dougadeen v Ramsamooj & Ors (1959) 1 WIR 293
o The appellant, D, was a monthly tenant of the first respondent, X, of a house
where she lived with her family and ran a parlour business. Without X's
consent D concluded a verbal agreement with the second respondent, Y,
whereby Y was to occupy the premises for a few months in place of D, and pay
the rent to X in D's name. The agreement was duly put into effect but when,
after some months, D verbally requested the premises back, Y refused. D took
no special steps to recover possession and Y remained in possession,
continuing to pay the rent to X in D's name, until after some 2 years had
elapsed, when he purported to sell the parlour business and transfer the
premises to the third respondent, Z, who thereupon went into occupation.
Shortly afterwards D visited the premises which Z had left locked and, with a
view to resuming possession of them, placed her own padlock on the door.
Later that same day X, Y and Z together broke off D's lock.
o D sued X, Y and Z claiming damages for trespass, or in the alternative, for
dispossession. Her claim was dismissed.
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o Held: (i) The arrangement concluded between D and Y was not a mere licence
but a tenancy agreement. As such it could only have been determined by
proper notice or by lawful re-entry and resumption of possession.
iii.
Written agreement/contract
iv.
Oral agreement
•
These are usually periodic tenancies: weekly monthly or yearly. Oral agreements
for a lease in excess 1 year are not legal. E.g., A can orally agree to rent premises
from B at a monthly rent of $1000, payable on the 1st of each month until it is
ended by notice. (monthly periodic tenancy).
v.
By Statute
•
In some jurisdictions the legislation has stepped in, in some cases to
extend/create a lease even where one of the parties involved does not wish such
a relationship extended/created. See relevant Rent Restriction Statutes.
vi.
By attornment
•
Tenancy may be created where a tenant acknowledges and accepts a third party,
who has newly acquired title as his new landlord.
vii.
By Estoppel
•
A lessor is estopped from repudiating a tenancy he has granted whether or not
he was entitled to grant such tenancy.
•
A lessee is estopped from denying the title of the lessor by whom he was let into
possession whether or not he is aware of any defect in the lessor’s title.
•
Mackley v Nutting [1949] 2 K.B. 55
o N., the contractual tenant of a dwelling-house, controlled by the Rent
Restriction Acts, died in 1935, and, since he had made no will and no grant of
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administration of his estate was obtained, by s. 9 of the Administration of
Estates Act, 1925, the benefit of his tenancy became and remained vested in
the President of the Probate, Divorce and Admiralty Division. The tenant's
widow, Mrs. N., remained in occupation of the house and paid the weekly rent
to the landlords W. and M. Ld. until her death intestate on September 11, 1946.
Miss N., her daughter, took out letters of administration to her mother's
estate, which were granted on March 27, 1947. On May 5, 1947, the plaintiff,
who had acquired the freehold reversion in the premises from W. and M. Ld.
gave notice to the President to determine the tenancy. Possession of the
premises being refused by Miss N. to the plaintiff, he sued for recovery of
possession. Evidence was given by a director of W. & N. Ld. that at the time of
N.'s death, they did not want to turn out Mrs. N. from the premises and would
not have done so, if they could.
o Held, (1) that at the death of N. par (g) of sub-s. 1 of s. 12 of the Increase of
Rent and Mortgage Interest (Restrictions) Act, did not apply;
o (2) that the intention of W. and M. Ld. and of Mrs. N. at the time of N.'s death
was to create a new contractual tenancy in favour of Mrs. N., which W. and
M. Ld. were estopped from denying;
o (3) that Mrs. N., had she been alive, could have relied on that estoppel against
the plaintiff and that Miss N. could do so as her legal personal representative;
and
o (4) that this right to rely on the estoppel became a tenancy when the interest
of the President was determined by the notice to quit (Webb v. Austin (1844)
7 M. & G. 701, at p. 725).
•
Industries Properties Ltd v Associated Electrical Industries Ltd et al [1977]
2 All ER 293
o The Parkers agreed to sell their properties to their company. The agreement
was registered and the price was paid but the premises were deliberately never
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conveyed. The company negotiated to lease the premises. A draft lease was
created which showed the company as the lessors. The potential lessees asked
the company to confirm that they were the freeholders which they incorrectly
did. The lease for 21 years was granted, determinable by either party at the
end of the 7 or 14 years. The lessors terminated after 7 years and found the
premises in bad condition which breached a covenant. They claimed damages
and the lessees contended that they were not bound by the covenant as the
company was not the freeholders. It was held that the lessees were prohibited
from denying the lessor’s title. A lessee who had possession for the whole of
the term was estopped from denying his lessor's title in respect of the period
for which he had possession unless after termination a claim was made against
him by title paramount in respect of some part of that period.
•
Edoo et al v Bridglalsingh et al TT 2012 HC 285 1.
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CHARACTERISTICS OF A LEASE
•
Presence of a grantor/lessor/landlord.
•
Presence of a grantee/lessee/tenant.
•
Right of exclusive possession:
o Isaac v. Hotel de Paris (1959 2 WIR,
o Street v. Mountford [1985] AC 809.
•
Term granted is less than term held by grantor/lessor/landlord:
•
Lewis v. Baker [1905] 1 Ch. 46
o If a lessee with an original lease and a reversionary lease or an agreement therefor
underlet the premises for a term exceeding the original lease, he could not
distrain for rent during the original lease either at common law for want of a
reversion, or under Landlord and Tenant Act 1730, s 5, or Conveyancing Act 1881,
s 44 (repealed).
o Term granted is less than term held by grantor/lessor/landlord.
•
Term is fixed or is determinable by either party:
•
Prudential Assurance v. London Residuary Body [1992] 3 All E.R. 504
o Prior to 1930 the plaintiffs' predecessor in title owned land with a street frontage
on which there were shop premises. In 1930 the London County Council (the
LCC) purchased a strip of the land along the street frontage for future road
widening and purported to lease it back to the plaintiffs' predecessor in title at a
rent of £30 per annum under an agreement which provided by cl 6 that the
tenancy would continue until the land was required for road widening by the
LCC. The agreement authorised the erection and use by the tenant of temporary
one-story shops or buildings on the site until the LCC required the land for road
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widening and terminated the tenancy on two months' notice. Over 60 years later
the road had not been widened and the first defendant, the London Residuary
Body (the LRB), which was the successor in title of the LCC, agreed to sell the
strip of land to the second to fourth defendants, a company and two private
individuals. The LCC's freehold title was subsequently vested in the second to
fourth defendants. None of the defendants was a highway authority with roadwidening powers. Prior to the sale the LRB served six months' notice to quit on
the plaintiffs purporting to determine their tenancy. The plaintiffs sought
declarations that the notice to quit was null and void because the tenancy could
only be determined if the land was required for road-widening purposes in
accordance with cl 6 of the agreement. The judge held that the tenancy had been
terminated by the notice to quit but on appeal the Court of Appeal reversed his
decision and granted the declarations sought. The second to fourth defendants
appealed to the House of Lords.
o Held – A grant for an uncertain term or duration did not create a lease since it
was beyond the power of a landlord and his tenant to create a term which was
uncertain. Accordingly, the 1930 agreement did not create an estate in the land
because it purported to grant a term of uncertain duration. However, because
the tenant had entered pursuant to the agreement and paid the yearly rent, he
had become a tenant from year to year and that tenancy was then for a term
certain because each party had the power to determine by six months' notice.
Since the landlord, the LRB, had served such a notice the plaintiffs' tenancy had
been validly terminated. The appeal would therefore be allowed.
•
Lace v. Chantler [1944] KB 368
o Landlord and Tenant – Lease – Term – Certainty – Termination defined with
reference to termination of war.
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o A house was let for the duration of the war and it was contended that such a
term was sufficiently certain because at some future time its duration would be
made certain:
o Held – such a term was uncertain and no valid tenancy was created.
•
Interest in land created and held by grantee/lessee/tenant.
•
Grantor usually reserves right to collect rent.
•
Grantor retains right to regain possession (reversion).
•
Subject matter must be land or incorporeal hereditament
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1: Exclusive Possession – the bedrock of all leases
•
This is the right of the tenant to exclude all other people, including the landlord and/or
his agent from the leased premises. This means that the tenant can prevent the landlord
and/or his agents from entering the premises except where the agreement provides for,
or the tenant otherwise agrees to allow entry to view the condition of the premises. If
there is no such provision or consent the landlord is a trespasser.
•
The term exclusive possession is synonymous with exclusive control of the land. The
tenant has the rights of the owner of the land, albeit temporarily and subject to certain
restrictions. Without exclusive possession an occupier has no interest or estate in the
land and is a licencee.
•
There is no tenancy created in the absence of the grant of exclusive possession.
•
Street v Mountford [1985] A.C. 809.
o Mr. Street, by an agreement which stated on its’ face that it was a licence, granted
Mrs. Mountford the right to occupy rooms 5 & 6 of the property 5 St Clements
Gardens in Boscombe for a rent of 37.00 per week. The question for the court was
whether the agreement was, as expressed in the agreement, a licence, or whether it
was in fact a lease. The terms of the agreement included that Mr. Street could enter
the rooms at any time to inspect, to read the meter, to carryout maintenance and
install or replace furniture or for any other reasonable purpose. No one other than
Mrs. Mountford could occupy or sleep in the room without permission. No children
or pets were allowed. The “licence” could be terminated by 14 days’ written notice.
The agreement also stated that the licence did not and was not intended to give a
tenancy and conferred no protection from the Rent Acts.
o Held: Per Lord Templeman: “My Lords, there is no doubt that the traditional
distinction between a tenancy and a licence of land lay in the grant of land for a term
at a rent with exclusive possession.” “any express reservation to the landlord of
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limited rights to enter and view the state of the premises and to repair and maintain
the premises only serves to emphasise the fact that the grantee is entitled to
exclusive possession and is a tenant. In the present case it is conceded that Mrs.
Mountford is entitled to exclusive possession and is not a lodger. Mr. Street provided
neither attendance nor services and only reserved the limited rights of inspection
and maintenance and the like set forth in clause 3 of the agreement. On the
traditional view of the matter, Mrs. Mountford not being a lodger must be a tenant.”
o “In the present case, the agreement professed an intention by both parties to create
a licence and their belief that they had in fact created a licence. It was submitted on
behalf of Mr. Street that the court cannot in these circumstances decide that the
agreement created a tenancy without interfering with the freedom of contract
enjoyed by both parties. My Lords, Mr. Street enjoyed freedom to offer Mrs.
Mountford the right to occupy the rooms comprised in the agreement on such
lawful terms as Mr. Street pleased. Mrs. Mountford enjoyed freedom to negotiate
with Mr. Street to obtain different terms. Both parties enjoyed freedom to contract
or not to contract and both parties exercised that freedom by contracting on the
terms set forth in the written agreement and on no other terms. But the
consequences in law of the agreement, once concluded, can only be determined by
consideration of the effect of the agreement. If the agreement satisfied all the
requirements of a tenancy, then the agreement produced a tenancy and the parties
cannot alter the effect of the agreement by insisting that they only created a licence.
The manufacture of a five-pronged implement for manual digging results in a fork
even if the manufacturer, unfamiliar with the English language, insists that he
intended to make and has made a spade.”
o The agreement was a lease.
•
Exclusive possession may be granted expressly or may be inferred from the substance
of the rights and obligations created and assumed by the parties.
o Westminster City Council v Clarke [1992] 1 All ER 695
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▪
The appellant council decided that the respondent was a vulnerable person who
was homeless and had a priority need for accommodation under s 59(1)(c) of the
Housing Act 1985 and placed him in temporary accommodation in a hostel as a
first step towards the discharge of their duty under s 65(2) of the Act to “secure
that accommodation becomes available for his occupation.”
▪
There was a resident warden supported by a resettlement team of social workers
and the council hoped that, after a period of rehabilitation and supervision at
the hostel, each occupier would be able to move to more permanent
accommodation where he would be independent.
▪
The respondent paid a weekly accommodation charge and was granted a “licence
to occupy” which provided that he had no right of exclusive occupation of any
particular accommodation or room which might be allotted to him and that it
did not create the relationship of landlord and tenant.
▪
Under the terms of the licence, the council were entitled to change the allotted
accommodation without notice and to require the occupier to share it with any
other person, and the licensee was only entitled to occupy accommodation in
common with the council, whose representative could enter at any time. The
respondent was allocated a room in the premises and undertook to observe the
conditions of occupation set out in the agreement and to pay a weekly charge for
the accommodation and services provided.
▪
Some six months later, the council served the respondent with a notice to quit,
terminating his licence for breaches of the conditions of occupation arising out
of his conduct on the premises, and when he refused to move out the council
brought proceedings in the county court claiming possession. The respondent
claimed to be a secure tenant under Pt IV of the 1985 Act but the trial judge held
that he was not and granted the council a possession order.
▪
The respondent appealed to the Court of Appeal, which allowed his appeal.
▪
The council appealed to the House of Lords: Held where, in discharge of a local
authority’s duty under s 65(2) of the 1985 Act to secure that accommodation was
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made available to a person with a priority need, a homeless person was provided
with temporary accommodation in a hostel used by the local authority to
accommodate homeless single persons and he occupied a room there under a
licence to occupy which did not confer exclusive possession of the room, he was
not a secure tenant under the Act, since it was necessary that the local authority
retain possession of all the rooms in the hostel in order to supervise and control
the activities of the occupiers in the discharge of its responsibilities to the
vulnerable persons accommodated there, and accordingly the terms in the
licence negativing exclusive possession were not inserted for the purposes of
enabling the authority to avoid the creation of a secure tenancy.
▪
The appeal would therefore be allowed and the possession order restored.
o Family Housing Association v Jones [1990] 1 All ER 385
▪
A council granted a licence of certain freehold premises to a housing association
so that it could use the properties as temporary housing accommodation for
homeless families. In 1984 the appellant applied to the council for housing as a
homeless person and the council, which accepted that the appellant was
homeless and had a priority need, referred her to the association.
▪
In February 1985, the association entered into an agreement with the appellant
to allow her and her son to occupy a two-roomed self-contained flat in one of
the premises held on licence from the council. The agreement was described as
being ‘for the use of temporary accommodation’ and provided in cl 2 that the
appellant’s occupation was on a temporary basis only and did not constitute a
secure tenancy, in cl 3 for payment of an accommodation charge weekly in
advance, and in cl 5 that ‘the Licence’ was granted on the basis that she did not
have exclusive possession as against the association. The association retained
keys to the premises in order to offer support, to discuss rehousing problems and
to inspect the state of repair.
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▪
In April 1985 the council offered the appellant the tenancy of another flat but she
refused to accept it. In September 1986 the association commenced proceedings
for possession against the appellant in the county court.
▪
The judge held that the appellant was a licensee and granted the association an
order for possession, on the grounds, inter alia, that the landlord had retained a
key to the premises not as a matter of convenience but as a means of free entry
to the premises at will, which showed that there was no exclusive possession.
The appellant appealed to the Court of Appeal.
▪
Held: The appeal would be allowed for the following reasons:
▪
(1) The retention of a key by the landlord was not by itself decisive in determining
whether an occupier of residential premises had exclusive possession and
whether an agreement for the occupation of residential premises was a tenancy
or a licence. Accordingly, since the purpose for which the association had
retained a key was to inspect the flat and discuss matters with the appellant and
not so that it could impose another co-occupant on the appellant, the fact that
the key was retained did not indicate that the appellant was a licensee rather
than a tenant, and, since all the other elements required to give the appellant a
secure tenancy were present, namely that the appellant and her son were to be
the only occupants of the flat and that the appellant paid a weekly rent, and since
the provision of cl 5 of the agreement that the appellant would not have exclusive
possession was to be disregarded as not representing the true nature of the
arrangement, the agreement between the appellant and the association had
created a weekly tenancy.
▪
(2) In any event, even if the agreement between the appellant and the association
had merely created a licence, it was a licence which was subject to s 79(3) of the
Housing Act 1985 and therefore conferred on the appellant the same security of
tenure as if she had been granted a tenancy. However, whether the tenancy or
licence gave the appellant security of tenure against the possession order sought
by the association depended on whether the flat had been provided by the
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council pursuant to its duty under s 63(1) to house the appellant temporarily
pending inquiries or its duty under s 65(2) to provide accommodation to persons
who were unintentionally homeless and had a priority need and since that issue
had not been decided by the judge the case would be remitted to the county
court for further hearing.
o Spencer v Esso Standard Oil (1959) 1 WIR. 407
▪
A and his wife leased a portion of land to a company for 30 years at $35/monthly.
The company had the right to renew the lease for 3 periods of 10 years. They built
a service station and made an agreement with A to manage and operate the
station. The agreement contained clauses for operation and maintenance of the
station and provided, that A should pay a monthly licence fee for the use of the
station, that he should have quiet enjoyment and that the agreement could be
terminated for any cause by either party with 1 months’ notice in writing.
▪
A was given notice to quit and give up possession of the station which he ignored
by a specified date. The company began proceedings for recovery of possession
and other relief. A’s counsel argued that the agreement was a lease and if the
company wished to end the agreement, they must give A the statutorily required
notice before suing. They argued that the notice was bad because it gave no
reason for terminating the agreement and no cause existed. The company argued
that the agreement was a licence terminable under the agreement’s clause. The
substantial question was whether the trial judge was correct in holding that the
agreement was a licence.
▪
Gordon JA held that (i) the agreement was a licence because it passed no interest
in the land. A was permitted to enter into possession and occupy the land for the
specific purpose of operating and maintaining the service station. His possession
was confined solely to this purpose;
▪
(ii) since the agreement provided that it could be terminated by either party “for
any cause whatsoever” on giving a month’s notice in writing, the parties, in
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agreeing to this method of termination must be presumed to have understood
the meaning of the words and their full effect. The agreement was therefore
terminable for any cause which the party giving the notice might have in mind
and the recipient had no right to inquire as to the cause. It was immaterial
whether or not the cause was stated and the notice was therefore valid;
▪
(iii) the respondent company had sued for “rent due” but should have sued for
damages for use and occupation of its station. Damages should be calculated by
the minimum monthly licence fee in the agreement for a period extending from
when A should have yielded up possession under the notice, to until the time
when the court order became effective.
o Sylvestre v Cyrus (1969) 13 WIR 108
▪
In consideration of the payment of a premium of $150 and of an agreement to
pay rent at $12 per month in September 1956, CS was let into exclusive possession
of a house by MC who was the tenant of that house. MC moved out of the house
to let CS into possession and she took her telephone with her and she also had
the electric meter removed.
▪
On 1 February 1958, MC re-entered the house and occupied a portion of it. This
action on her part caused CS to bring a suit against her in which CS claimed
damages for trespass and an injunction restraining further trespass. MC counterclaimed for mesne profits on the ground that CS, was her licensee and continued
in possession after the licence had been terminated.
▪
Held: that in the absence of special circumstances or conduct which would
negative the prima facie inference of an intention to create a tenancy which
would otherwise be drawn, the exclusive possession by CS was sufficient to
establish a tenancy.
21
Christiane R. Dookie
•
See also:
o Shell-Mex and BP Ltd v Manchester Garages Ltd [1971] 1 All ER 841
▪
P oil company owned a filling station with land behind it and allowed D garage
company to go into occupation. The back land, used for storing and servicing
vehicles, was covered by a 21-year underlease. The filling station was covered by
a document called a licence. Under the station licence D agreed to do all they
could to promote the sale of P's products and not to impede P’s rights of
possession and control of the premises.
▪
P claimed an injunction restraining D from continuing to use the filling station.
D claimed that they had had exclusive possession of the filling station and that
the "licence" constituted a tenancy which was protected. Lord Denning MR
held that the transaction concerning the filling station constituted a licence and
not a tenancy on the terms of the agreement. Since the licence had ended, the
judge was right to give summary judgment for an injunction. Addiscombe Garden
Estates Ltd. v. Crabbe distinguished.
o Addiscombe Garden Estates Ltd v Crabbe [1957] 3 All ER 563
▪
The trustees of a registered tennis club which, by its rules, carried on the
business of a lawn tennis club, entered into an agreement with the owners of
tennis courts and clubhouse which purported to license and authorize the
trustees to use and enjoy the premises for 2 years in consideration of monthly
payments of "court fees."
▪
The agreement contained numerous clauses providing that D should repair and
maintain the premises "in good tenantable repair and condition" and render
them up at the expiry of the "licence" in such condition; permit the "grantors"
and their agents "at all reasonable times to enter the premises to inspect their
condition and for all other reasonable purposes." The owners agreed that the
"grantees" should "quietly enjoy" the premises without interruption. It also
contained a provision that the "grantors" might “re-enter and determine the
22
Christiane R. Dookie
licence in the event of non-payment of court fees or on any breach of the
grantees' stipulations."
▪
After expiration of the agreement the trustees continued to occupy and use the
premises, asserting that the agreement granted a tenancy. The owners claimed
injunctions to restrain the trustees from trespassing and ordering them to quit
and yield up the premises:
▪
Jenkins L.J held that the agreement taken as a whole, although described as a
licence...created the relationship of landlord and tenant for the relationship was
determined by the law and not by the label which the parties chose to put on it.
Additionally, the premises were occupied for the purpose of a "business" and
therefore the tenancy which the trustees held under the agreement was
protected by the Act
o Aslan v Murphy (Nos 1 & 2) (1989) 3 All ER 130
▪
Owners sought possession of accommodation and the question arose whether
the occupiers were tenants or lodgers.
▪
#1 The tenant occupied a single room under an agreement describing parties as
a licensor and licensee and expressly denying exclusive possession. It also said
that the licensee had use of the room between certain hours and the licensor
could permit others to use the room in common with the licensee and that the
licensor would retain the keys to the room with absolute right of entry at all
times. Virtually no services were provided by the landlord. P obtained an order
for possession which D appealed. Before the appeal was heard the local authority
served a closing order on P on the ground that the room was not fit for human
habitation. P issued further proceedings claiming possession on the closing
order and succeeded in obtaining a further possession order. D also appealed
that P sought to uphold the first order on the ground that licensing occupation
for part only of the day and the right to retain the keys prevented the D from
being a tenant.
23
Christiane R. Dookie
▪
#2 D occupied a 3-bedroom house under an agreement which stated that the
owner wished to be able to obtain vacant possession on very short notice, that
the occupiers accepted as a fundamental term of the agreement that no tenancy
would be created but merely bare licences, that there was no exclusive
possession, that the owner reserved the right to enter the premises at any time
and that the occupiers would not change the locks or give the keys to anyone
else. The owner wished to sell the house with vacant possession and obtained a
possession order.
▪
It was held (1) that the mere fact that the agreement as a whole was not a sham
did not mean that full effect was to be given to all the terms of the agreement in
determining whether it was a tenancy or a licence. A provision providing for the
owner to retain the keys to the premises did not by itself negate exclusive
possession. If the owner retained a key to fulfill an obligation to provide daily
services, it might be inferred that the occupier was a lodger and not a tenant BUT
if the owner retained the keys merely for emergency purposes no such inference
could be made (2) An owner of occupied accommodation who had been served
with a closing order could not claim possession on that ground without serving
a notice to quit on the occupier. In both cases the occupants were tenants and
not lodgers. In the first case the owner was not entitled to possession on the
ground that he had been served with a closing order by the local authority since
he had not served a notice to quit on the occupier. The appeals would therefore
be allowed.
As previously noted, the grant of the right to occupy land for determined/determinable
period with exclusive possession usually denotes the creation of a tenancy. In Street
(supra), Lord Templeman went further to state that there are however, three circumstances
which negative the creation of a tenancy even where exclusive possession is granted:
i.
where there is no intention to create legal relations;
ii.
where there is some relationship other than that of landlord and tenant;
24
Christiane R. Dookie
iii.
where the grantor has no power to grant a tenancy. Facchini v Bryson [1952] 1 TLR
1386.
I: No intention to create legal relations
•
An occupant of land/premises cannot be a tenant where it appears from the
surrounding circumstances that there is no intention to create legal relations. This is
based on the fact that a tenancy is a legally binding agreement which confers an estate
in land.
•
A person who is in exclusive occupation of land/premises will not be treated as a tenant
where the parties exhibit a relationship based on a family arrangement or act of
friendship or generosity or is subject to contract.
•
Isaac v Hotel de Paris [1960] 1 All ER 348, PC
o The respondent company was the lessee of part of a building in Port of Spain which
was used as a hotel. The company let the appellant into possession of the first floor
of the building under an arrangement that the appellant would operate a night bar
for the company. After a dispute between the parties, it was agreed that the
appellant would pay $250 a month as rent and all expenses incurred in the running
of the bar, and in return that the appellant could retain all the profits for himself.
Later, the company gave the appellant seven days’ notice to quit the premises. It
was held by the Privy Council that the circumstances in which the appellant was
allowed to occupy the premises showed that the company never intended to accept
him as a tenant and that he was fully aware of that fact. A licence had been created,
and the notice was sufficient to terminate it.
25
Christiane R. Dookie
•
Lackram Bisnauth v Ramanand Shewprashad CCJ Appeal No. CV12 of 2007.
Judgment of the Court at pages 1-4
o In 1957, J the title owner of the disputed land, allowed her son L to construct a house
on part of the first lot of land for himself and his family as a personal privilege. In
1960, L entered into possession of three further lots with his mother’s permission.
L had paid a token rent to J until 1981.In 1996; J sold the land to the respondents
after L refused to buy it.
o In 1998 L sought to obtain ownership by prescription of all four lots of land which
was transported by J to the respondents. He claimed that his occupation was open
and adverse over the whole of the said property and that he exercised all acts of full
ownership over same since 1957. However, nowhere in the pleadings did L claim
that he had exclusive possession of the land.
o The issues in this case were: (1) Whether there had been an intention by J and L to
enter into legal relations between 1957 and 1981. (2) Whether L had continued in
possession as licensee with J’s express or implied consent after 1981; and if not,
whether he had been in adverse possession to her title between 1982 to 1999.
o Relevant principle as abstracted from the case: The traditional distinction between
a tenancy and a licence of land lay in the grant of land for a period at a rent with
exclusive possession as opposed to mere permission to be on the land. If an
applicant fails to plead that his occupancy and possession of the property had been
exclusive, there can be no tenancy.
o However, the test of exclusive possession is not determinative of a tenancy even
where it is coupled with the payment of rent if there is no clear intention by the
parties to create legal relations.
See the following cases also:
•
Marcroft Wagons Ltd v Smith [1951] 2 All ER 271
•
A occupied P’s dwelling house as a statutory tenant until his death. His widow and
daughter continued to live there after his death until the widow’s death. The daughter
26
Christiane R. Dookie
called P’s representatives and asked that the tenancy be transferred to her. P refused
saying that he needed the place for an employee but did not wish to disturb her and
accepted 2 weeks rent. The daughter remained in possession for about 6 months. It was
held that no tenancy was created between the P and the daughter. Before the rent
restrictions act, the law inferred when exclusive possession was granted at a rent that a
tenancy has been created. The law did not recognize those conditions as compatible
with any other kin. Today, similar facts would be considered against statutory tenancies
and the decision may be different.
•
Cobb v Lane [1952] supra
o The owner of a house allowed her brother to live there rent free (a family
arrangement) there was no tenancy because there was no intention to enter into
legal relations. The court was right to find D only had a privilege and not a tenant
at will and so there is no interest in the land.
o The fact of the exclusive occupation of property for an indefinite period is no longer
inconsistent with the occupier being a licensee and not a tenant at will. Whether or
not a relationship of landlord and tenant has been created depends on the intention
of the parties, and in ascertaining that intention the court must consider the
circumstances in which the person claiming to be a tenant at will went into
occupation and whether the conduct of the parties shows that the occupier was
intended to have an interest in the land or merely a personal privilege without any
such interest.
•
Edwards v Braithwaite 32 WIR 85
o C’s mother owned the land and lived there with his father. She invited C to move
his chattel house on an undefined area of the land which he did. His mother later
died intestate and his father who continued to live on the land never bothered C nor
asked for rent. C planted fruit trees, cultivated a kitchen garden and erected fences
and paling around his house. After C’s father died his brother was heir to his father’s
27
Christiane R. Dookie
estate and purported to convey the land to his sister, D. C, however, continued to
live on the land without paying any rent, taxes, etc. D mortgaged the land to P
who instituted foreclosure proceedings. When advertisements were published
seeking any persons with claims to charges on the land C made a claim to title by
prescription. C must be regarded as having gone into occupation under a family
arrangement and this arrangement continued after his mother’s death during the
lifetime of his father; in the absence of any evidence of interference with his
occupation by the heir after his father’s death or any indication of an intention to
create a relationship of landlord and tenant at that time, it could be inferred that C
was nothing other than a licensee at any time and was incapable of deriving a title
by prescription.
•
Romany v. Romany 21 WIR 491
o A mother, Marie, gave her son Jules permission to occupy a part of her premises,
until he found alternative accommodation. Marie repeatedly requested Jules to
vacate the premises but each time he found an excuse to stay on a little longer and
remained until his death with R who later his wife. Marie conveyed the premises to
A who made repeated requests for R to deliver up possession of the premises. A filed
a writ claiming possession of the premises, and R pleaded exclusive and undisturbed
possession for more than 30 years. It was held that: (i) that in family situations
where one member helps another in a period of difficulty over accommodation there
is usually no intention to create legal relationships, so that there can be no tenancy
at will but merely a licence; (ii) that it was reasonable to infer that the judge
interpreted the relationship between Jules and Marie as a licence rather than a
tenancy at will in the absence of an intention to create legal relations;(iii) that
Marie’s repeated requests to Jules to vacate the premises revoked his licence, and
her mere inaction after each request could not without more amount to an extension
of his licence.
28
Christiane R. Dookie
•
Hadjiloucas v Crean [1987] 3 All ER 1008
o A and a friend, B, agreed with the landlord to rent a furnished two-roomed flat with
separate kitchen and bathroom. They were given copies of identical documents
labeled as 'licences' which stated that 'The Licensor shall grant and the Licensee
accept a licence to share with ONE other each [to] be separately licensed by the
Licensor and to the intent that the Licensee shall not have exclusive possession' of
the relevant premises. The rental was for 6 months at £260/monthly each being
responsible for the whole rent. B left after 3 months and arranged with the landlord,
without consulting A, for R to take her place. After the 6 months R left but A stayed
on and applied for a lesser fixed rent. The landlord then sought possession on the
ground that A's occupation was not exclusive and therefore A was merely a licensee.
A contended that the 2 identical agreements were leases and were mis-described or
it was a sham or artificial transaction and secondly, if two or more persons occupied
residencies at the same time it was to be presumed that they had between them a
right of exclusive possession and were tenants.
o It was held that the fact that 2 or more persons occupied a flat at the same time did
not give rise to a presumption that they held exclusive possession and were therefore
tenants rather than lodgers. It was a matter of fact. The landlord’s entitlement to
nominate a new occupant might be important but not necessarily be decisive, since
it could simply be evidence of parallel tenancies. Thus, the facts had to be examined
to determine whether the agreement or agreements made created a joint tenancy
granting together exclusive possession, or two separate licences without exclusive
possession.
29
Christiane R. Dookie
II: Relationship Other Than That of Landlord and Tenant
•
e.g., vendor/purchaser; employer/employee.
•
Errington v Errington and Woods [1952] 1 KB 290
o A father purchased a house leaving some to weekly mortgage installments. He
retained the conveyance in his name and promised his son and daughter in law that
he would convey the house to them if they paid the installments. They did so but
the father left the house to his widow. The son moved out but the daughter in law
continued to make the payments and lived in the house. The mother sought
possession.
o Held: the occupation of the house by the son and the daughter-in-law was not
determinable by the widow on demand, since they were entitled to remain in
possession so long as they paid the instalments to the building society, and,
therefore, they were not tenants at will of the premises;
o
the payments of instalments could not be regarded as payments of rent made for
convenience to the building society and not to the father, since the daughter-in-law
and her husband were not bound under any agreement with the father to make
those payments, and, therefore, they were not weekly tenants or tenants for the
period during which the instalments fell to be paid;
o
the daughter-in-law and her husband were licensees, having a permissive occupation short
of a tenancy, but with a contractual or equitable right to remain in possession so long as
they paid the instalments which would grow into a good equitable title to the house when
all the instalments were paid, and, therefore, the widow was not entitled to an order for
possession.
o
Denning LJ held that the daughter in law and the son were licensees not tenants. The crucial
test has sometimes been whether the occupier has exclusive possession or not. Although a
person who is let into possession is prima facie to be considered to be a tenant, he will not
be held to be so if the circumstances negative any intention to create a tenancy. If the
circumstances and the conduct of the parties show that all that was intended was that the
occupier should be granted a personal privilege, with no interest in land, he would be held
30
Christiane R. Dookie
to be a licensee only. Although the couple had exclusive possession there was clearly no
relationship of landlord and tenant but had a mere privilege to remain, with no right to
assign or sublet.
•
Javad v Aqil [1991] 1 All ER 243
o
P, the landlord, allowed D, a tenant into occupation of the premises on payment of a sum
alleged to be "rent for 3 months in advance." That arrangement was made in anticipation of
a lease. A draft lease was prepared and formed the basis of negotiations between the parties.
It provided for a term of 10 years, at an annual rent payable quarterly in advance. The tenant
was to pay on completion, a deposit in respect of potential damage to the property and
arrears. The tenant remained in possession and the parties failed to reach agreement
causing negotiations to break down. The landlord commenced proceedings for possession,
asserting that the tenant was in occupation as a tenant at will.
o
It was held that the tenant's possession with the landlord's consent, coupled with payment
and acceptance of rent by reference to a quarterly period, did not raise a presumption of a
periodic tenancy, since the inference to be drawn as to the nature of the tenant's interest
depended on a consideration of all the circumstances, of which payment of rent on a
periodic basis was, though important, only one. The fact that when the tenant had been
allowed into possession in anticipation of a lease, the parties had not agreed terms of the
proposed lease was to be taken into account when ascertaining their intention. In the
circumstances the creation of a periodic tenancy could not be inferred and the tenant was
a tenant at will.
•
Hughes v Greenwich London Borough Council [1993] 4 All ER 577
o
R was the headmaster of a school. His contract of employment provided him free board and
lodging within the school grounds. When he retired, he and his wife claimed to be secure
tenants entitled to buy the freehold. The education authority which was freeholder and
employer denied that he had this right. They claimed that first he had been an employee
whose contract 'require[d] him to occupy the accommodation for the better performance
of his duties' not a secure tenant.
31
Christiane R. Dookie
o
The employers appealed to the HOL, contending that a term was to be implied in the
contract of employment that the headmaster was required to occupy the headmaster's
house.
o
It was held that for a term to be implied there had to be a compelling reason and on the
facts, there was no such reason since living in the headmaster's house was not essential to
his job. It was not sufficient that he could better perform his duties by living there.
Therefore, the respondents were secure tenants who had the right to buy the headmaster's
house.
•
Ramnarace v Lutchaman [2001] 1 WLR 1651
o
P's uncle and aunt, allowed her to live on their land until she could afford to buy it. She
built a wooden house there for herself and her family and paid no rent or other sum for her
occupation. The uncle died and 2 notices to quit were subsequently issued on her but no
steps were taken to enforce them. After the aunt died P replaced the wooden house with
concrete and fenced around the home. D (the aunt and uncle’s daughter) removed the fence
and P commenced proceedings for a declaration that the title of D and his predecessors had
been extinguished by the 16-year limitation period for recovery of land. D counterclaimed
seeking a declaration that he was the owner of the land and an order for possession.
o
It was held that a tenancy at will could not be created where there was no intention to create
legal relations. Since P had been in exclusive possession and her occupation had been
attributable not merely to her uncle's generosity but to the parties' genuine intention that
she should purchase the land in due course, she had to be taken to have entered into
possession as an intending purchaser and a tenant at will. That tenancy at will had
automatically determined at the end of 1 year and the owners' right of action accrued
immediately; no new tenancy having been created. Any later determination of the tenancy
was ineffective and without more, service of the notices to quit wouldn’t stop time running.
Accordingly, D's title to the land had been extinguished before he had brought an action to
recover the land.
•
Isaac v Hotel De Paris, supra
•
Street v Mountford, supra at p. 827 per Lord Templeman
32
Christiane R. Dookie
•
Note the basis for distinguishing between service licensees and service tenants.
•
Test: “must be ancillary to and necessary for better performance”.
•
Dobson v Jones, 30 Digest (Repl) 548, 1821
o
A, a surgeon occupied, a house at the infirmary in the hospital, which was appropriated to
him. Repairs were done by the hospital. The surgeons to the hospital, when not provided
with a residence there were allowed a weekly sum as lodging money. By hospital regulations,
no officer of the hospital was allowed to make any exchange of apartments. It was held that
A did not occupy the house ‘as tenant,’ in as much as he was required to occupy the same
with a view to the more efficient performance of his duties as surgeon.
•
Smith v Seghill Overseers (1875) LRQB 422
o
S was a collier, and resided in his employer’s house for which he paid no rent. He was not
entitled to any notice to quit, and occupation of the house would cease when his service
ceased. His employer had several houses filled with workmen but married men were given
preference. It was not absolutely necessary for a workman to live in one of the houses to
perform his work. The occupation was not connected with the performance of the
employment, and A was therefore a tenant.
o
Mellor J held that …where the occupation is necessary for the performance of services, and
the occupier is required to reside in the to perform those services, the occupation being
strictly ancillary to the performance of his duties the occupation is that of a servant.
o
“Required” means more than just the master saying “you must reside in one of my houses,
if you come to work into my service.” Residence must be ancillary to and necessary to the
performance of the servant’s duties. Unless he is required for that purpose to reside in the
house and not merely by an arbitrary regulation of the master he is not prevented from
occupying as a tenant.
•
Norris v Checksfield [1991] 4 All ER 327
o
An employer took on the employee as a semi-skilled mechanic. The employee was allowed
to occupy his employer’s bungalow near his place of work on condition that he would drive
coaches for the employer, for which purpose he would apply for a P.S.V. licence. Before
moving into the property, the employee signed a document confirming the terms of his
occupation: it referred to him having "a licence" to occupy the bungalow and stated that on
33
Christiane R. Dookie
termination of his employment that licence would cease forthwith. The employer deducted
a weekly sum from the employee's wages in respect of his occupation of the bungalow. Later,
the employer found out that the employee was a disqualified driver and dismissed him
summarily without serving notice to quit and brought an action for possession of the
bungalow. The judge held that the employee occupied the property under a service licence
that automatically ended with the contract of employment and that no notice to quit was
statutorily required to be served in order to determine that licence.
o
It was held that (1) that an employee's right to exclusive possession of an employer's
dwelling house together with payment of rent did not necessarily create a tenancy if the
employee was genuinely required to occupy it for the better performance of his duties and
if there was a sufficient factual nexus between the commencement of the occupation and
the employment which would benefit from the occupation, an employer could grant a
licence even though the employee went into occupation before taking up the employment.
As the employee had gone into occupation to perform the driving duties expected of him,
the judge was entitled to conclude that he was a service licensee and not a tenant.
o
The requirement that a valid notice to quit be served to determine a right to occupy a
dwelling house applied only to a licence that was a "periodic licence"; and the licence
granted to the employee was terminable on his employment ending i.e., a licence for a single
period. As such notice was not required.
•
N.B. The test is whether the employee is required to occupy the premises for the better
performance of his duties i.e., is it ancillary to or necessary for the better performance of his
job.
III: No Power to Grant Tenancy
•
Facchini v Bryson [1952] 1 TLR 1386
o
An employer and his assistant entered into an agreement which allowed the assistant to
occupy a house for a weekly payment on terms conferring exclusive possession. The
assistant did not occupy the house for the better performance of his duty and was not
therefore a service occupier. The agreement stipulated that 'nothing in this agreement shall
be construed to create a tenancy between the employer and the assistant.'
34
Christiane R. Dookie
o
Somervell L.J. said: 'If, looking at the operative clauses in the agreement, one comes to the
conclusion that the rights of the occupier are those of a lessee, the parties cannot turn it into
a licence by saying at the end ' this is deemed to be a licence;' nor can they, if the operative
paragraphs show that it is merely a licence, say that it should be deemed to be a lease.'
o
Lord Denning said that exclusive possession for a fixed term at a rent will normally create a
tenancy unless there had been something in the circumstances, such as a family
arrangement, an act of friendship or generosity, or such like to negative any intention to
create a tenancy.
•
London Borough of Camden v Shortlife Community Housing et al [1993] 25 HLR 330,
(1992) Times, 12 March
o
The Council granted Shortlife (a company limited by guarantee) a licence of Council
property that the Council intended to redevelop. Shortlife would then grant licences to
occupy the property to homeless people. Millett J. held that Shortlife did not have a lease.
Although its agreement with Camden did not expressly reserve control / access rights to the
Council, it was clear that the Council had them and needed them. The use of the ‘licence’
terminology was consistent with the parties’ true intentions. The Council intended to
redevelop the property imminently and Shortlife knew this. In any event, statute (Housing
Act 1980, s.91) meant that it was ultra vires the Council to grant a lease without Ministerial
consent; it had not obtained any such consent. Paving the way for what he was later to say
in the Court of Appeal in Bruton, Millet J said that the occupiers did not have a tenancy by
estoppel since they knew that Shortlife had no power to grant them a tenancy.
2: Certainty of Term
•
The grant of an uncertain term, even with clearly exclusive possession, cannot create a lease.
•
A lease cannot be granted in perpetuity.
•
Blackstone's Commentaries on the Laws of England - 'Every estate which must expire at a
period certain and prefixed, by whatever words created, is an estate for years and therefore this
estate is frequently called a term, terminus, because its duration or continuance is bounded,
limited and determined: for every such estate must have a certain beginning, and certain end.'
35
Christiane R. Dookie
•
Prudential Assurance Co Ltd v London Residuary Body, supra
o
The owner of a strip of land facing a highway sold it to the council, which leased it back to
him providing that 'the tenancy shall continue until the . . . land is required by the council
for widening of the highway.’ The council abandoned highway widening plans and passed
the reversion to D who was not a highway authority. They issued a notice to quit and sold
the land to D2, D 3 and D 4. The initial owner assigned his tenancy to P who then sought a
declaration that the tenancy could only be determined upon the land being required for
road widening. It was held that all leases and tenancy agreements must be for a term of
certain duration and that this lease being for an uncertain period, was void. The land was
held on a yearly tenancy created by virtue of the tenant's possession and payment of yearly
rent consistent with the terms of the memorandum of agreement. Accordingly, since the
term preventing the landlord from determining the tenancy until the land was required for
road widening purposes was inconsistent with the right of either party under a yearly
tenancy to determine it on six months' notice, P's tenancy had been lawfully determined.
o
Per Lord Templeman: A demise for years is a contract for the exclusive possession and profit
of land for some determinate period. Such an estate is called a 'term.'”
o
(Once date is ascertainable then it is valid (this includes even if the date is not explicitly
stated).
•
Centaploy v Matlodge [1973] 2 WLR 832
o
R Ltd. Were the proprietors of garages which they allowed P to use after giving a signed
memorandum that a weekly rent was received and was to continue until determined by the
lessee. Their successors in title sought to determine the tenancy. P claimed that under the
memorandum only the lessee had the ability to determine the tenancy, D counterclaimed
that the memorandum was void for uncertainty. It was held that the tenancy was not void
for uncertainty and the memorandum provided for a week-to-week tenancy unless
determined.
•
Knight v Pratt [1946] JLR S7
o
This was an agreement signed in 1939 by which the plaintiff was given the right for the
duration of the present war against Germany to work and plant certain plots of the
defendant’s land as might be allotted to him for his own benefit. After the cessation of
36
Christiane R. Dookie
hostilities against Germany in 1945, the defendant destroyed the crops planted but the
plaintiff who sued for damages of the destruction of the crops and wrongful eviction. The
defendant contended that the plaintiff was a tenant and his tenancy determined on the
cessation of hostilities and not when the war ended and, that the plaintiff thereafter became
a tenant on sufferance. It was agreed that the agreement was void for lack of definite term.
The plaintiff succeeded in his claim for damages, the court holding that the agreement did
not
•
Period contemplated must have definable beginning and definable end.
•
Lace v Chantler (supra)
o
P sublet a dwelling house to D for “the duration of the war”. This tenancy did not create a
good leasehold interest as the term, when the agreement takes effect was uncertain and it
was impossible to construe this tenancy as a lease for a long period, e.g., 99 years,
determinable on the cessation of the war.
o
Per Lord Greene MR: Normally there could be no question that this was an ordinary weekly
tenancy, duly determinable by a week's notice, but the parties…agreed to a term which must
mean for the duration of the war. A term created by a leasehold tenancy agreement must
be expressed either with certainty and specifically or by reference to something which can,
at the time when the lease takes effect, be looked to as a certain ascertainment of what the
term is meant to be. When this agreement took effect, the term was completely
uncertain. It was impossible to say how long the tenancy would last. This agreement cannot
take effect as a good tenancy for the duration of the war. (this arrangement was void for
uncertainty).
3: Rent
(dealt with in Unit 2)
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DISTINCTION BETWEEN A LEASE AND A LICENCE
•
A licence may be loosely defined as the permission of a landowner to enter onto a piece of land
for a given purpose, without which the entry would be a trespass.
•
There are different kinds of licences. Two most important are:
a)
Bare Licence - This is a personal permission or consent granted without consideration to
enter land, for example postman etc.
b) Contractual Licence -This arises from permission to use or occupy land derived from an
express or implied contract. It is founded on valuable consideration paid by the licencee.
•
Many factual similarities may exist between a lease and a licence with respect to use and
occupation. There is, however, a clear legal distinction between that which must be made for
the following reasons:
a) A licence does not create an interest in land.
b) A licensee is not protected by Rent Restriction legislation; (NB Exception provided for in
Rent Restriction – Serviced Premises Act, [T]).
c) The interest of a licensee is not adverse to that of his licensor, but a tenant may acquire title
by adverse possession.
•
Dougadeen v Ramsamooj (1959) 1 WIR 293
o
The appellant, D, was a monthly tenant of the first respondent, X, of a house where
she lived with her family and ran a parlour business. Without X’s consent D
concluded a verbal agreement with the respondent. Y, whereby Y was to occupy the
premises for a few months in place of D and pay the rent to X in D’s name. Months
later, D verbally requested the premises back, Y refused. D took no special steps to
recover possession and Y remained in possession, continuing to pay the rent to X in
D’s name. X purported to sell the parlour business and transfer the premises to the
third respondent, Z, who thereupon went into occupation. Shortly afterwards D
visited the premises with a view to resuming possession of them and placed her own
padlock on the door. Later that same day, X, Y, and Z broke off D’s lock. D sued X,
Y, and Z claiming damages for trespass, or in the alternative, for dispossession. Her
claim was dismissed.
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Christiane R. Dookie
o
HELD: The arrangement concluded between D and Y was not a mere licence but a
tenancy agreement. As such, it could only have been determined by proper notice
or by lawful re-entry and resumption of possession. There had been no notice, and
the mere placing of a lock upon the premises did not constitute a resumption of
possession. Consequently, at the time the appellant’s lock was broken, she was not
in possession of the premises and could not therefore maintain an action for trespass
or dispossession in respect of them.
•
Bisnauth v Shewprashad [2009] CCJ 8 (AJ)
o L sought to obtain ownership by prescription of four lots of land situated in Berbice,
Guyana. On 23 April 2002 the Commissioner of Title and Judge of the Land Court
dismissed the respondents' opposition to the petition and declared that L's estate
had acquired absolute title to the lots, and that the appellant, the executor of L's
estate, was entitled to a conveyance thereof. However, the Guyana Court of Appeal
allowed the respondents' appeal and the appellant appealed further to the
Caribbean Court of Justice. L had been allowed into possession in 1957 by his
mother, J, the title holder, of part of one lot on which he had constructed a wooden
house and had occupied the house with his family. Around 1960 L had entered into
possession of three further lots with his mother's permission. L alleged that his
occupation of the property had been 'in open adverse [sic] over the whole of the said
property and has exercised and still continues all acts of full ownership over same
since the year 1957 unto the present time, nec vi, nec clam, nec precario' and that he
had 'enjoyed and still continues to enjoy the peaceful and quiet possession and
occupation of the said property …' L claimed to have carried out those acts of
occupation on the lands during the period 1957 to 1999 'free from any interruption
by any person or persons whomsoever'. However, L had paid to J yearly an amount
of $50 when he occupied part of the first lot and $100 yearly when he extended his
occupation to the three further lots between 1957 and 1981, when he took
most of his family to the United States of America; and on a return visit in
1982 he took his mother, J, with him. His three sons remained in the property
until 1983 and thereafter his niece occupied the house. However, the lands
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Christiane R. Dookie
were transported to the respondents by J in 1996 when L allegedly had refused
to buy them. In 1996 the house which had been constructed by L in 1957 was
demolished and replaced by another house which L bought. L and S
cohabited in the new house until 1998. In 1999 L became ill and was taken
back to the USA where he died in 2000. In 1998 L had instituted the
proceedings in the Land Court for a declaration of prescriptive title to the
lands which had been transported by J to the respondents in 1996. The
following issues arose for the court: (i) whether there had been an intention
by J and L to enter into legal relations between 1957 and 1981; and (ii) whether
L had continued in possession as licensee with J's express or implied consent
after 1981; and if not, whether he had been in adverse possession to her title
between 1982 and 1999. In particular, the court considered the doctrine of
nec vi, nec clam, nec precario.
o Held – (1) The traditional distinction between a tenancy and a licence of land
lay in the grant of land for a period at a rent with exclusive possession as
opposed to mere permission to be on the land. Moreover, s 3 of the Landlord
and Tenant Act, Cap 61:01, stipulated 'exclusive possession' as a requirement
of a tenancy from year to year. It followed that in the instant case, the Court
of Appeal of Guyana had fallen into error in finding that there had been a
tenancy between J and L during 1957 and 1981. On the basis of the facts
established by evidence, the ordinary requirements of a tenancy had been
palpably lacking. Nowhere in the petition had there been any claim by L that
his occupancy and possession of the property had been exclusive. However,
the test of exclusive possession was not determinative of a tenancy even
where it was coupled with the payment of rent if there was no clear intention
by the parties to create legal relations. In the circumstances, L, the eldest son
of J, had been allowed to construct a house on part of the first lot for himself
and family after he was married as a personal privilege which had incurred
no transfer of an interest in the land. Indeed, the familial relationship raised
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a presumption of an intention not to create legal relations. The relationship
supported inferentially the status of licensor and licensee.
•
Cobb v Lane [1952] 1 All ER 1199
o The fact of the exclusive occupation of property for an indefinite period is no
longer inconsistent with the occupier being a licensee and not a tenant at
will. Whether or not a relationship of landlord and tenant has been created
depends on the intention of the parties, and in ascertaining that intention
the court must consider the circumstances in which the person claiming to
be a tenant at will went into occupation and whether the conduct of the
parties shows that the occupier was intended to have an interest in the land
or merely a personal privilege without any such interest. The question in all
these cases is one of intention: Did the circumstances and the conduct of the
parties show that all that was intended was that the occupier should have a
personal privilege with no interest in the land? It seems to me that the judge
has so found. The defendant had only a personal privilege with no interest in
the land, which he could assign or sub-let, and he could not part with the
possession to another. He was only a licensee.
d) A license cannot be assigned – it is a personal contract between the parties.
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TYPES OF TENANCIES
1: Tenancy at Sufferance
•
Trinidad & Tobago - Landlord and Tenant Act Ch 27 No 16, ss 20; 22.
•
s.20: In case any tenant for any term of life, lives, or years, or other person who shall
come into possession of any land, by, from, under or by collusion with, such tenant,
shall willfully hold over any land after the determination of such term, and after demand
made and notice in writing given for delivering the possession thereof by his landlord
or lessor, or the person to whom the remainder or reversion of such land shall belong
or his agent thereunto lawfully authorized, then and in such case such person so
holding over shall, for and during the time he shall so hold over, or keep the person
entitled out of possession of, the said land aforesaid, pay to the person so kept out of
possession, his executors, administrators or assigns, at the rate of double the yearly
value of the land so detained, for so long time as the land is detained, to be recovered
by the action of debt, against the recovering of which said penalty there shall be no
equitable relief.
•
s.22: It shall and may be lawful to and for the landlord, where the agreement is not by
deed, to recover a reasonable satisfaction for the land held or occupied by the
defendant, in an action for the use and occupation of what was so held or enjoyed; and
if in evidence on the trial of such action any parole demise or any agreement (not being
by deed), whereon a certain rent was reserved shall appear, the plaintiff may make use
thereof as evidence of the quantum of the damages to be recovered.
•
This type of tenancy arises by implication of law and cannot be concluded by agreement
between the parties. Such a tenancy arises where a lawful tenant continues in
possession without the authority of statute or permission of the person entitled to
possession after his tenancy has ended.
•
His entry is lawful but he remains in possession without the landlord’s consent. This is
known as ‘holding over’.
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Christiane R. Dookie
•
The tenant has no estate in the land and he has no relationship with his former landlord.
He cannot assign or sub lease the premises and he cannot be sued for trespass because
his entry is lawful.
•
He can be sued for use and occupation (mesne profits) and not for damages.
•
See Seetahal v Batcchasingh (1987) High Court Trinidad and Tobago No 89 of 1983.
•
The following definition of tenancy at sufferance from Woodfall was quoted with
approval by Deyalsingh J in Seetahal v Batchasingh:
•
A tenant at sufferance is one who has entered by a lawful demise or title, and, after that
has ceased, wrongfully continues in possession without the assent or dissent of the
person next entitled; as where a tenant for years holds over after expiry of his term; or
where anyone continues in possession without agreement after a particular estate is
ended… An undertenant who is in possession at the determination of the original lease,
and is suffered by the reversioner to hold over, is only a tenant at sufferance. Where a
tenancy at will is determined by the landlord exercising acts of ownership, and the
tenant remains in possession, he becomes a tenant on sufferance only: but slight
evidence would be sufficient to show a new creation of a tenancy at will, or he may by
payment of rent, or other acknowledgment of tenancy, become tenant from year to year.
•
In the Seetahal case, S’s claim that he had become a tenant at sufferance was rejected
since he could not show that he had ever owned an estate in the land; at most, his
occupation had been as a licensee. He was not, therefore, protected by the Land Tenants
(Security of Tenure) Act 1981.
2: Tenancy at Will
•
Trinidad & Tobago - Real Property Ordinance, Ch 27 No 16, ss 20, 22
•
This form of tenancy may be express or implied. Under such a tenancy the tenant is in
possession with the landlord and his occupation is determinable at the will of the
landlord or tenant.
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Christiane R. Dookie
•
If L permits T to occupy L’s land as tenant on the terms that the tenancy may be
terminated by L or T at any time, a tenancy at will arises.
•
This type of tenancy was described by de la Bastide JA in Romany v Romany thus: A
tenancy at will exists when a person occupies the land of another on the understanding
that he may go when he likes and that the owner may terminate his interest at any time
the owner wishes so to do. A tenancy at will has been properly described as a personal
relationship between the landlord and his tenant and it is important, in this case, to
note that it is determined by the death of either of them or by one of a variety of acts,
even by an involuntary alienation, which would not affect the subsistence of any other
tenancy.
•
In Cyrus v Gopaul, Edoo JA further emphasised: ‘[T]he rule is clear. A tenancy at will
can only exist as a result of an agreement between the parties and an intention on the
part of the landlord to create such a tenancy.’ Thus, where, in this case, the owner of
land permitted the plaintiff, who was a friend of a deceased statutory tenant, to remain
in occupation of the land for four years after the tenant’s death, it was held that she
occupied the land as a mere licensee and not as a tenant at will, since there was no
intention on the part of the owner to accept her as a tenant.
3: Periodic Tenancy
•
Trinidad & Tobago - Ch 27 No 16, s 6
•
A tenancy from year to year may be implied from any circumstances which would be
sufficient to create such a tenancy according to the law of England, and such tenancy
from year to year shall have the same duration, and incidents, and shall be determinable
by notice in the same manner, as by the law of England.
•
This is a lease with no stated end date, but there is an agreed term, such as week to
week, month to month, or year to year. Since there is no end date specified notice in
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accordance with the agreement or corresponding to the exact term, must be given for
termination.
•
Adler v Blackman [1953] 1 QB 146.
•
L and T had been parties to a fixed term tenancy. The rent was a weekly rent (not a
yearly or quarterly rent payable in monthly installments). T held over at the end of the
term and continued to pay rent weekly. L gave notice to quit calculated on the basis
that T had a weekly periodic tenancy. T argued that it had a yearly periodic tenancy. L
succeeded.
4: Fixed Term Tenancy
•
Tenancies may also be for a fixed term prescribed by the lease, i.e., with a fixed
commencement date and a pre-determined cessation date.
5: Statutory Tenancy
•
Statutory tenancies arise by virtue of rent restriction legislation. They are NOT
dependent on consent of any of the parties, for example –
•
Trinidad and Tobago Land Tenants (Security of Tenure) Act 1981.
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FORMALITIES FOR A VALID LEASE (Fixed term lease in excess of 3 years)
•
As stated above, in most Caribbean jurisdictions, statute provides for compliance with
specific formalities for the creation of a legal lease. In most jurisdictions, leases in excess
of three years (one in others) must be completed by deed to be valid at law. Leases for
shorted periods may be in writing or made orally. See following Statutes.
•
Conveyancing and Law of Property Act Ch. 27 No 12 S 10 (c)
•
Landlord and Tenant Ordinance Ch. 27 No. 16 S 3
o Leases for more than three years must be made by deed; leases for three years or less
may be made by deed or in writing; periodic tenancies and tenancies at will may be
oral.
•
Kushner v Law Society (1952) 1 KB 264
o An estate agent was convicted of unlawfully drawing and preparing an instrument
relating to personal estate contrary to Solicitors Act 1932 (c 37) s 47 (repealed). The
document which he had prepared was not sealed, and related to the grant of a
tenancy for a term of fourteen years determinable by the tenant at the end of any
year.
o On appeal by the estate agent, for whom it was contended that if the document was
a lease it was invalid because it was not sealed, and that if it operated as a demise it
was, by reason of the provisions for determination, for a term not necessarily
exceeding three years which, by Law of Property Act 1925 (c 20) ss 52, 54, did not
require to be made by deed, and therefore it was an instrument under hand only
and as such by Solicitors Act 1932 (c 37) s 47(4) (repealed), was not an instrument
within the meaning of that section and, therefore, that no offence had been
committed:
o Held the offence created by s 47 (repealed) lay in the preparation of a document
which to be valid required to be made by deed and therefore the offence was
complete as soon as such a document had been prepared whether or not a seal was,
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in fact, put on it; that in deciding whether or not a lease was a lease for a period
exceeding three years within the meaning of s 2 (repealed) of the Statute of Frauds
and therefore one required by Law of Property Act 1925 (c 20) s 52, to be made by
deed, the principle of construction to be applied to s 2 (repealed) of the Statute of
Frauds was that which had always been applied to s 4 of that statute and accordingly,
if it was a lease for a definite period exceeding three years, although it might be
determined within that period, it was within the statute and the document in this
case, had it been legally valid would have vested a term of fourteen years in the
tenant and would have vested that term in him none the less because he could
terminate the tenancy at an earlier date. The instrument was a lease which required
to be made by deed, and, therefore, it was prepared in breach of Solicitors Act 1932
(c 37) s 47 (repealed).
•
Metcalfe v Edghill (1963) 5 WIR 417
o In pursuance of an oral agreement for a lease for a fixed period exceeding three years
the tenant on 16 July 1960, entered into possession of the landlord's premises at
Maraval. Thereafter the tenant paid and the landlord accepted rent measured by
reference to a month. On 25 August 1960, the oral agreement was reduced into
writing by the landlord and signed by the tenant on 2 September 1960. The tenant
subsequently gave one month's notice to quit and on its expiry on 30 November
1960, vacated the premises. The landlord disputed the validity of the notice and sued
for specific performance of the agreement. The tenant contended that the
agreement sought to be specifically enforced created a monthly tenancy and no
more and this question was by consent ordered to be determined as a point of law
before trial of the action. The learned judge held that the tenancy was not for a fixed
term, nor a monthly tenancy, but one from year to year.
o On appeal, held: the agreement sought to be specifically enforced was effective as an
agreement to execute a lease for the fixed term stated therein.
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The Effect of Non-Compliance with Formalities for a Lease at Law
•
A lease that does not comply with the legislative formalities is void at law. Therefore, a
document which purports to be a lease for six years that is not completed by deed, (not
registered) as required by legislation, is void at law and the legal estate in the premises
will not pass to the tenant.
•
However, if a tenant enters into possession of the premises in those circumstances, with
the landlord’s consent, he/ she will become a tenant at will. If the tenant then pays rent
on a monthly basis, he becomes a monthly periodic tenant, if he pays weekly, he
becomes a weekly tenant at law. A periodic tenancy may be established by reference to
payment of rent, determinable by notice to quit in accord with the given period.
IN EQUITY
•
In most jurisdictions, a written document which does not comply with the formalities
may be construed as an agreement for a lease.
•
An agreement for a lease is essentially a contract with land as its subject matter. It binds
one party to create and the other to accept a lease in the future. The agreement for the
lease unlike the lease itself does not always create a legal estate in land. It can be created
orally, in writing or by implication of law. Note distinction in Guyana, where it must be
in writing.
•
The tenant under an agreement for a lease can acquire an equitable interest in the
premises. Most legislation in the Caribbean provides that the agreement for the lease
of land is unenforceable by action unless it is by writing and signed by the parties to be
charged. Where there is no written evidence of the agreement or the agreement is
legally unenforceable, BUT there is some act of part performance related to the contract
agreement, it may result in the creation of an equitable lease.
•
Note well, where oral agreements concerning land are breached; they are unenforceable
at law and may only be enforced through the equitable doctrine of Part Performance.
(See Part Performance below).
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ORDINARILY, THE AGREEMENT FOR A LEASE MUST:
A) Be in writing
•
Conveyancing and Law of Property Act Ch. 27 No 12 S 4
•
Landlord and Tenant Ordinance Ch. 27 No.16 S 3
•
It must bear the signature of the Party to be charged.
•
John Bertram Goddard v Laurent John (1971) 19 WIR 510
o The landlord and tenant, entered into an oral agreement for the lease of land.
Subsequently, the parties signed a lease containing an option to purchase. The
lease stated that it was executed before MM Mason, a Notary Royal. This was in
untrue as the tenant’s evidence showed. The tenant later wanted to exercise the
buying option and asked the landlord to fix a date for such. The landlord refused
to complete the transaction and the tenant tendered the sale amount to the
landlord’s wife but she refused to accept it. The tenant commenced a claim for
specific performance and damages for breach of contract. It was held that that the
lease was a false document, not executed before a Notary Royal and was therefore
not an “authentic writing” and the court could not find any judgment upon it.
•
Burgess v Cox 1951 1 Ch. 383
o On June 28, 1949, the defendant agreed orally to purchase a holiday camp,
consisting of about 6 acres of freehold land and certain buildings, from the
husband of the plaintiff (hereinafter called the vendor), for 10,500&L, which was
to include deposits held by the vendor in respect of future bookings at the camp.
500l. was paid by way of deposit, and a document was drawn up in the following
terms: "Sale of … Holiday Camp. Complete freehold. Exceptions of personal
furniture … including stock on day of completion. Agreed sum 10,500l.". The words
"(completion at an early date)" were added and the document was signed by the
vendor only. A copy was made and handed to the vendor, the original being
retained by the defendant.
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o On July 1, 1949, the defendant wrote to the vendor. "… I am very pleased we were
able to mutually agree terms for the purchase of … [the] Holiday Camp, and shall
look forward to taking over from you at an early date. I have … every reason to
believe that a really prompt completion date, as we both desire, is almost certain
…". The defendant proved unable to raise the purchase money, and on July 23,
1949, his solicitors wrote to the vendor's solicitors that the defendant was "unable
to go on with his purchase"; and they asked for return of the deposit.
o On September 22, 1949, the vendor died, leaving the plaintiff (his widow) as his
sole personal representative. On October 22, 1949, her solicitors wrote that she
was endeavouring to find another purchaser, and that she did not admit the
defendant's claim for the return of the deposit. The property was resold early in
1950. The plaintiff claimed damages for breach of contract, alternatively for
rescission and forfeiture of the deposit. The defendant denied that any contract
had been concluded, and also relied on s. 40 of the Law of Property Act, 1925. He
counterclaimed for the return of the deposit.
o The court held that the evidence established a concluded oral contract of sale of
the holiday camp, which the defendant by his letter of July 23, 1949, ad repudiated
and the deposit was accordingly forfeit; on the defence raised under s. 40 of the
Law of Property Act:
o Held, (1) that the court was entitled to incorporate the defendant's signature on
the letter of July 1 with the document of June 28, and thus make a memorandum
signed by the defendant sufficient in this respect to satisfy s. 40.
o But (2) that the two documents when so read together did not constitute a
sufficient memorandum, for neither document contained any reference to the
inclusion in the sale of the deposits in respect of the bookings, which was a
material term of the contract without which the deposits could not pass to the
purchaser.
o (3) Although in a case where the memorandum omits a term of the contract
inserted solely for the benefit of the plaintiff, the plaintiff may waive that term and
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Christiane R. Dookie
enforce the contract as recorded in the memorandum, yet, where the term so
omitted was inserted for the benefit of the defendant, the plaintiff cannot concede
it and enforce the contract with that term included in it, for the court has no power
to insert a term into the contract which is not in the memorandum.
B) Contain essential terms of the agreement or memorandum.
•
Description of the Parties
o Potter v Duffield (1874) LR 18 Eq. 1
▪
In order to satisfy the requirements of the Statute of Frauds, the note or
memorandum of an agreement for the sale of real estate must contain either
the names of the contracting parties or such a description of them that there
cannot be any fair dispute as to their identity. The term “vendor” is not of itself
a sufficient description of one of the contracting parties. Real estate was put up
for sale under particulars and conditions of sale which did not disclose the
vendor’s name, but stated that B was the auctioneer. The purchaser of one of
the lots signed a memorandum acknowledging his purchase; and B signed at
the foot of this memorandum on behalf of the “vendor”
▪
HELD: The memorandum did not sufficiently show who the vendor was, and
a bill for specific performance of the contract was dismissed.
•
Description of the Property
o Harewood v Retese (1990) 1 WLR 333
▪
It was held that the parties had reached a concluded oral agreement for the
sale of specific identifiable property to the plaintiff; that the letter from the
defendants to the housing authority constituted a sufficient written
memorandum of that oral agreement within s4 of the Conveyancing Ordinance
since the property to be sold was described therein with adequate certainty,
and oral evidence was admissible to resolve any disputes as to the actual
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identity of the property or the precise boundaries; and that, accordingly, an
order for specific performance was enforceable and had properly been made.
•
The term and its commencement
o Harvey v Pratt (1965) 1 WLR 1025
▪
D and P made a written agreement for D to take lease of a garage. The
document described the property, set out the annual rent, and the length of
the term but omitted a commencement date. It was signed by both parties and
witnessed. Later it was stamped. D never went into occupation and P refused
to complete whereupon D registered the document as an estate contract. P
brought an action that the document was not an enforceable or binding
contract because it failed to specify a commencement date. It was held that for
a valid agreement for a lease to exist the parties and the property, the length of
the term, the rent, and the date of commencement must all be defined.
Accordingly, there was not a validly concluded contract.
•
Rent
o Chew v Richmond (1962) LRBG 31
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THE DOCTRINE OF WALSH V LONSDALE: SPECIFIC PERFORMANCE
•
As stated before, where there is non-compliance with the formal requirements for the
creation of a valid lease in law, Equity treats the invalid written document, as an
agreement for a lease, which if it can be specifically performed, allows one party to
compel the other to grant or adhere to an equitable lease in the exact terms of their
written agreement.
•
This is known as the doctrine in Walsh v Lonsdale.
•
Walsh v Lonsdale case summary:
o Defendant on 29 May 1879, agreed to grant and plaintiff to accept a lease of a mill
for seven years at the rent of 30s a year for each loom run, plaintiff not to run less
than 540 looms, lease to contain such stipulations as were inserted in the head lease
of 1 May, which was a lease at a fixed rent made payable in advance and contained a
stipulation that there should be at all times payable in advance on demand one
whole year’s rent in addition to the proportion if any, of the yearly rent due and
unpaid for the period previous to such demand.
o Plaintiff was let into possession and paid rent quarterly not in advance, up to 1
January 1882, inclusive, having run in 1881 560 looms. In March 1882, defendant
demanded payment of £1,005 14s, £840 as one whole year’s rent for 560 looms at 30s
and £165 14s as the proportionate part of the rent from 1 January last, and put in a
distress. Plaintiff thereupon commenced his action for damages for illegal distress,
and for specific performance, and moved for an injunction. The judge granted the
injunction on the terms of plaintiff paying the £1,005 14s into court. Plaintiff
appealed:
o Held: (1) Since Jud Acts the rule no longer held that a person occupying under an
executory agreement for a lease was only made tenant from year to year at law by
the payment of rent, but that he was to be treated in every court as holding on the
terms of the agreement;
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o Plaintiff holding under the agreement was subject to the same right of distress as if
a lease had been granted, and if under the terms of the lease a year’s rent would have
been payable in advance on demand, a distress for that was lawful.
o “There is an agreement for a lease under which possession has been given. Now,
since Jud Acts, possession is held under the agreement. There are not two estates as
there were formerly, one estate at common law by reason of the payment of rent
from year to year and an estate in equity under the agreement. There is only one
court and the equity rules prevail in it. The tenant holds under an agreement for a
lease. He holds, therefore, under the same terms in equity as if a lease had been
granted, it being a case in which both parties admit that relief is capable of being
given by specific performance” per Jessel, MR.
THREE MAIN INSTANCES WHERE THE COURT WILL NOT GRANT SPECIFIC
PERFORMANCE:
1. Where the party seeking to enforce the written agreement has breached some covenant
or clause contained therein. The Courts of Equity, being a Court of conscience will not
allow him to benefit from the agreement if he has breached any of its terms.
•
Coatsworth v Johnson (1886) 55 LJQB 220
o P entered into possession of a farm under an agreement for a lease for 21 years
from D. Before any rent was due or paid D gave P notice to quit, and turned him
out of possession, because he had done what amounted to a breach of a covenant
contained in the agreement and intended to be inserted in the lease. It was held
that (1) P was not entitled to recover; (2) as he was in possession under an
agreement for a lease for 21 years (document not properly registered and had paid
no rent, he was only a tenant at will, and his landlord was entitled so to determine
that tenancy. (doors of equity were not open to him and he would remain as he
was a tenant-at-will).
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•
Martin v Smith (1874) LR9 Exch. 50, 52
o By an agreement not under seal, P agreed to let to D a house and premises for 7
years, upon the terms that D would, in the last year of the term, paint, grain, and
varnish the interior, and whitewash and colour. D entered under the agreement,
and occupied and paid rent during the whole period 7 years. In an action for breach
of the terms it was held that D must be taken to have occupied on the terms that,
if he should continue to occupy during the whole 7 years, he would do those things
which were by the agreement to be done in the 7th year; and that he was therefore
liable.
2. Where the enforcement of the agreement by Specific Performance in favour of a sub
lessee would determine the originally lease under which his landlord (the sub lessor)
held.
•
Warmington & Anor. v Miller (1973) 2 All ER 372
o D was a lessee for 21 years. The lease contained an unqualified covenant 'Not to
assign, underlet or part with possession of part only of the demised premises'. The
premises included a workshop. D allowed P to use the workshop for their business
of panel beating and spraying cars. Subsequently he made an oral agreement with
them to grant them a lease of the workshop for 12 months and thereafter until
determined by 12 months' notice on either side. D refused to execute the
agreement and P claimed specific performance. It was held that P were not entitled
to a decree of specific performance since the court would not order the defendant
to do that which he could not do under the terms of the lease under which he held
the premises and which, if he did, would expose him to proceedings for forfeiture.
Neither were P entitled to the declaration sought for the equitable doctrine that
an intended lessee was to be treated as having the same rights as if a lease had in
fact been granted to him only applied where the intended lessee was entitled to
specific performance of the agreement; furthermore such a declaration could only
be protected by an injunction and if P subsequently sought an injunction to
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protect their right to remain in possession it would be an invitation to the court
to grant part specific performance of the agreement.
3. Where there is a bona fide purchaser for value without notice of the lease.
•
Dhanpaul v Demerara Bauxite Company Ltd
o In 1953, P became tenant of building land to A under an oral agreement of tenancy
paying a monthly rent. P entered into possession of the land, erecting 2 buildings
thereon. In 1957, A, without notice to the P, conveyed by way of transport to the
Ds the land which he let to P. P’s tenancy was not reserved by the transport and
had never been registered under the provision of the Deeds Registry Ordinance. P
claimed, inter alia, damages for trespass.
o Held: The Ds took the lands conveyed to them by A free from the P’s tenancy and
the P’s claim in trespass therefore failed.
•
Metcalfe v Edghill (1953) 5 WIR 417
o In pursuance of an oral agreement for a lease for a fixed period exceeding three
years the tenant, entered into possession of the landlord’s premises. Thereafter the
T paid and the landlord a monthly rent. The oral agreement was later reduced to
writing by the landlord and signed by the tenant. The tenant subsequently gave
one month’s notice to quit and, on its expiry, vacated the premises. The landlord
disputed the validity of the notice and sued for specific performance of the
agreement. The tenant contended that the agreement sought to be specifically
enforced created a monthly tenancy and no more and this question was by consent
ordered to be determined as a point of law before trial of the action. The learned
judge held that the tenancy was not a fixed term, nor a monthly tenancy but one
from year to year (thus, 6 months’ notice was necessary). It was held that the
agreement sought to be specifically enforced was effective as an agreement to
execute a lease for the fixed term stated therein.
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PART PERFORMANCE
•
Prior to 1989 in the UK by section 40 LPA, an oral lease or one not adequately evidenced
in writing may be enforced under the doctrine of Part Performance. (This section was
repealed by Law of Property (Miscellaneous Provisions) Act 1989.UK)
•
In most Caribbean jurisdictions where section 40 still applies, if a court of equity finds
sufficient acts of part performance of such a contract, they may issue a decree of specific
performance against the party in breach. Acts of part performance must still be in
furtherance of the contract and not merely recognition of its existence or
contemplation.
•
There are two tests for determining what acts of part performance are sufficient to allow
enforcement of an oral agreement concerning land, both originally formulated by the
House of Lords.
•
The older and stricter test was set out in Maddison v. Alderson (1883), 8 App. Ca. 467
at 478 (H.L.); it requires that the acts relied upon by the claimant as part performance
“be unequivocally, and in their own nature, referable to some such agreement as that
alleged.”
•
That test was relaxed considerably in England in 1976, with the decision in Steadman
v. Steadman, [1976] A.C. 536, where the House of Lords held that the acts of part
performance need refer only on the balance of probabilities to some contract to which
the claimant was a party.
Maddison v Alderson (1883) 8 App. Cas. 467
•
Facts: An intestate induced a woman to serve him as his housekeeper without wages for
many years and to give up other prospects of establishment in life by a verbal promise
to make a will leaving her a life estate in land, and afterwards signed a will, not duly
attested, by which he left her the life estate.
•
The appellant having possessed herself of the title deeds, the heir-at-law, to whom the
estate descended, brought the present action to recover them; and she by her statement
of defence and counter-claim insisted that she was entitled to the same benefit which
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she would have taken under the will, if duly executed, by virtue of a parole agreement
alleged to have been made with her by her master for sufficient consideration, and to
have been on her part performed.
•
Held: There was no contract, and even if there had been and although the woman had
wholly performed her part by serving till the intestate's death without wages, yet her
service was not unequivocally and in its own nature referable to any contract, and was
not such a part performance as to take the case out of the operation of the Statute
Frauds section 4, and she could not maintain an action against the heir for a declaration
that she was entitled to a life estate.
•
There is no conflict of judicial opinion, and no ground for reasonable controversy as to
the essential character of the act which shall amount to a part performance, in one
particular. It must be unequivocal. It must have relation to the one agreement relied
upon and to no other. It must be sufficient of itself, and without any other information
or evidence, to satisfy a court, from the circumstances it has created and the relations
it has formed, that there are only consistent with the assumption of the existence of a
contract the terms of which equity requires, if possible, to be ascertained and enforced
(Lord O'Hagan).
•
“There was certainly no contract on her part which she would have broken by
voluntarily leaving his service at any time during his life; and I see no evidence of any
agreement by her to serve without, or to release her claim to, wages. If there was a
contract on his part, it was conditional upon, and in consideration of, a series of acts to
be done by her, which she was at liberty to do, or not to do, as she thought fit; and
which, if done, would extend over the whole remainder of his life. If he had dismissed
her, I do not see how she could have brought any action at law, or obtained any relief
in equity.” Per Selbourne LC.
Steadman v Steadman (1974) 2 All ER 977
•
Facts: The parties’ marriage had broken down. The wife had applied for a declaration
that the matrimonial home was jointly owned and an order for sale. The husband was
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making maintenance payments to the wife and he had applied for a variation of the
maintenance order. Negotiations took place at the door to the courtroom and it was
agreed that the wife would sell her interest in the house to her husband for GBP1500.
•
He also agreed to pay GBP100 in respect of arrears of maintenance payments. The
agreement was explained to the court which made orders implementing what the
parties had agreed concerning maintenance. The husband paid the GBP100 and his
solicitors prepared a deed to transfer the wife’s interest in the house to the husband.
The wife, however, refused to sign the deed and relied on the English equivalent of s.3(1)
of the Conveyancing and Property Ordinance. The husband argued that she was legally
bound to transfer her interest in the matrimonial home to him since there had been
acts of part performance of the oral agreement.
•
Held: The husband’s payment of 100 pounds off the arrears of maintenance was, in the
circumstances, unequivocally referable to an agreement between the parties and,
therefore, a sufficient part performance thereof to enable an action to be brought on
the agreement, even though that act of part performance was not referable to the term
relating to the disposition of an interest in land.
•
"The true principle... of the operation of acts of part performance seems only to require
that the acts in question be such as must be referred to some contract, and may be
referred to the alleged one; that they prove the existence of some contract, and are
consistent with the contract alleged."
N.B. The test to be used depends on your jurisdiction.
Rawlinson v Ames (1925) Ch. 96
•
D entered into an oral contract with P to take a lease of a flat. It was agreed that certain
alterations should be made to the flat. During the progress of the alterations D
frequently visited the flat and made suggestions for further alterations, which were
carried out by P at her request. She subsequently repudiated the contract. In an action
for specific performance.
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•
It was held that the acts done by P at D’s request were acts of part performance and that
P was entitled to judgment for specific performance. The fact that the tenant made the
landlord make all these adjustments meant it had to be referable to this contract and
no other.
Wakeham v Mackenzie (1968) 1 WLR 1175
•
P sought performance of an oral agreement to grant a tenancy having given up her own
home to move into her employer's home. It was held that there had been sufficient part
performance. Facts here were similar to Maddison.
•
Difference between these two cases was that here there was no giving up of anything.
Giving up of the rent-controlled apartment meant that there was something more (mrs
S.C doesn’t agree) HOL felt that you could look at her conduct and see the contract that
they had. And there wouldn’t have been any other contract. Court here granted specific
performance.
Chaproniere v Lambert
•
After his wife's death, B, 72, orally agreed with P, a widow,67 that if she would move
into his house, and look after it and him for the rest of his life, she should have his house
and contents when he died. It was a term of the agreement that she should pay for her
own board and coal. P moved to B's house, looked after it and him until he died, and
paid for her board and coal. B did not leave the house or contents to P.
•
In an action by P for specific performance it was held that the giving up of P’s flat in
order to make her home at B's house, her moving into that house and looking after B
and the house while paying for her board and coal were acts of part performance which
must be referred to some contract, and were referable to the contract that she alleged.
Accordingly, the court would decree specific performance of the oral contract by B with
P that she should have his house and contents after his death.
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Jackman v Jones BB 1987 HC 22 (Steadman v Steadman applied)
•
In Barbados, the High court in the case of Jackman and Jones seemed to follow the
case of Steadman, by holding that the payment of money together, with possession
could amount to part performance.
Crevelle v Affoon TT 1987 CA 9 (Maddison v Alderson applied)
•
In T&T, the CA cleared rejected the relaxed version proffered by the Steadman case for
the more traditional viewpoint of Maddison v Alderson.
•
The Court felt that to allow the much-criticised decision of Steadman to prevail would
be to defeat the purpose of the legislation as anyone could by their unilateral act force
the performance of an oral contract.
•
The respondent agreed orally to purchase land from the appellant. The respondent
instructed his solicitors to draft the conveyance and paid them $500 for their services.
When the conveyance had been drafted the respondent advised the appellant and the
latter agreed to the court for specific performance of the oral contract; in the absence
of any memorandum in writing, he relied on part performance of the contract. The trial
judge made an order for specific performance and the appellant appealed to the Court
of Appeal.
•
Held, allowing the appeal, that mere instructing of a solicitor by the respondent to draft
a conveyance, payment for that draft and the passing of that draft to the appellant did
not constitute part performance and the order for specific performance would be
discharged.
•
“It is well settled that the acts relied upon must point plainly and not in an equivocal
way, to the existence of an agreement between the parties falling within the general
class to which the agreement belongs. Usually mere payment of money, part of whole,
is not sufficient; taking possession generally is; making improvements is acceptable,
continuance in possession may not be. It is fraud that it is being sought to avoid and in
the same way that the statute could be made an instrument of fraud, so too part
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performance could itself be made an engine of fraud.” – Professor Wade writing in the
Law Quarterly Review, Vol 90 (October 1974).
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NOTES ON CONTENTS OF LEASES
1. The Commencement
• This part of the deed serves two purposes:
a. it introduces the document; and
b. it identifies the document as being a deed immediately imposing the
requirement to comply with all the technical legal requirements of a deed.
•
The ancient practice of using the words “THIS INDENTURE” is a remnant from the
time when the deeds were handwritten and made in two counterparts. The practice
was to write the deed out twice on a single sheet of parchment. The parchment was
torn in two pieces between the end and the beginning of the two sets of scripts
leaving an indented edge. The parchment thus formed two separate deeds which
could be fitted together to verify their validity.
•
This was in direct contrast to a “deed poll” which was a deed made only by one party,
the top of which had been polled or shaved even.
•
The modern practice is for the commencement to describe the general nature of the
document e.g., “THIS DEED OF CONVEYANCE” or “THIS DEED OF LEASE” or
“THIS DEED OF ASSIGNMENT”.
2. The Date
•
The date of a conveyance is only inserted when the parties have completed the
transaction. A deed may be executed by the parties in escrow, i.e., that the deed is
not to become effective until a stated event occurs. Upon the condition becoming
effective, the date of the original execution is then inserted and the deed becomes
valid as from that date.
3. The Parties
•
Every necessary party to a deed must be identified by reference to his name,
description and the capacity in which he is joined to the deed. Where an individual
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is joined in a deed in more than one legal capacity, he must be named and identified
separately in respect of each capacity in which he is joined.
•
Examples of capacities in which persons may be joined in a deed are:
o as a vendor/beneficial owner;
o as a purchaser;
o as a mortgagee agreeing to release the legal estate to a purchaser;
o as an executrix transferring the property of a testator to a beneficiary;
o as a trustee transferring to or on behalf of a cestui que trust.
•
The names of the parties must be set out in full. No initials, nicknames or aliases
should be used. The addresses and occupations of the parties should then be stated.
The order in which the parties are named generally follows the movement of the
interest to be conveyed. The first party to be named will generally be the person(s)
in whom the estate is currently vested. Persons through whom the estate must pass
will be named in the order in which the estate will pass through them. The lastnamed party will be the person in whom the current deed operates to vest the estate
being dealt with by the deed.
4. The Testatum
•
This serves as an introduction to the operative or functional part of the deed. The
old traditional language of the testatum is “NOW THIS DEED WITNESSETH”.
5. Operative Words
•
This part of the deed effects the ACTUAL DEMISE.
6. The Parcels Clause
•
This clause describes the property itself. The description must include the estate
being conveyed (freehold/leasehold) as well as the physical dimensions in which
the estate exists; that is the rights benefiting the property as well as those which
burden it.
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•
The description of the property contained in a conveyance should match with the
description contained in the contract for sale.
•
The Parcels clause will also contain any rights or easements the present seller
wishes to reserve for the land retained by him and reservation of rights on behalf
of the present buyer.
7. The Habendum
•
This limits the estate conveyed to the purchaser and defines the commencement
and duration of the lease.
8. The Reddendum
•
Defines the amount, frequency of rent and to whom and how rent is to be paid.
9. The Covenants
•
These are divided into tenant’s covenants and landlord’s covenants.
10. The Testimonium
•
This is the formal introduction to the parties’ execution of the deed.
11. The Attestation Clause
•
This is the clause which incorporates the signing, sealing and delivery of a deed. In
practice today, natural persons no longer seal deeds as evidence of execution,
signing suffices. The execution must take place in the presence of a witness to each
party who executes. This is accepted as due execution.
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PRECEDENT A
LEASE OF A DWELLING HOUSE
COMMENCEMENT
THIS LEASE/INDENTURE made the.......... day of October,
20………
DATE AND PARTIES
BETWEEN HAROLD OSBORNE of L'Esterre Estate in the
Parish of Saint Peter in (name of country) Farmer (hereinafter
called the LANDLORD which expression where the context
so admits shall 38 Landlord and Tenant 2020/2021 include the
reversioner for the time being immediately expectant on the
term hereby created) of the ONE part and JOHN BROWN of
Williams Terrace in the City of Atlas in (name of country)
Mercantile Clerk (hereinafter called the TENANT which
expression where the context so admits shall include his
successors in title) of the OTHER part.
TESTATUM
WITNESSETH as follows:
OPERATIVE WORDS
1. The Landlord demises unto the Tenant the premises
described in WORDS: the schedule hereto (hereinafter
called the demised premises).
HABENDUM
TO HOLD unto the Tenant from the 1st day of December 20…
for the term of seven years.
REDDENDUM
YIELDING AND PAYING therefore of the yearly rent of
$6,000.00 by equal monthly instalments commencing on the
31st day of December 20 .... and thenceforward on the last day
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of every month.
TENANT’S
COVENANTS
2. The Tenant for himself and his assigns covenants with the
Landlord as follows.
(1) To pay the reserved rents on the days and in the
manner aforesaid.
(2) To pay all existing and future rates, taxes, duties,
assessments and outgoings payable by law in respect of
the demised premises either by the owner or the occupier
thereof.
(3) To keep the demised premises including the drains and
sanitary and water apparatus and all fixtures and additions
thereto in tenantable repair and conditioning throughout
the term and to yield up the same in such repair and
condition at the determination of the tenancy.
(4) To keep the demised premises insured at all times
against loss or damage by fire in the joint names of the
Landlord and the Tenant in some insurance office or with
underwriters' to be named by the Landlord in the sum of
$80,000 at least and to make all payments necessary for
the above purposes within seven days after the same shall
respectively become due and to produce to the Landlord
or his agent on demand the several policies of such
insurances and the receipts for any such payment and to
cause all moneys received by virtue of any such insurance
to be forthwith laid out in rebuilding and reinstating the
demised premises and to make up any deficiency out of
his own moneys PROVIDED ALWAYS that if the Tenant
shall at any time fail to keep the demised premises insured
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as aforesaid the Landlord may do all things necessary to
effect or maintain such insurance and any moneys
expended by him for that purpose shall be repayable by
the Tenant on demand and may be recovered by action
forthwith.
(5) Not to use the demised premises otherwise than as a
private dwelling-house.
(6) Not to assign or underlet or part with the possession
of the demised premises or any part thereof without the
written consent of the Landlord, such consent not to be
unreasonably withheld.
(7) To permit the Landlord and his agent with or without
workmen to enter upon and view the condition of the
demised premises at all reasonable times during the said
term and forthwith to 40 Landlord and Tenant 2020/2021
execute all repairs and works required to be done by
written notice given to the Landlord.
(8) To deliver up the premises in good and tenantable
repair fair wear and tear excepted.
LANDLORD’S
COVENANTS
3. The Landlord for himself and his assigns hereby covenants
with the Tenant as follows:
(1) That the Tenant paying the rent hereby reserved and
performing the several covenants herein on his part
contained shall peaceably hold and enjoy the demised
premises during the said term without any interruption by
the Landlord or any person rightfully claiming under or in
trust for him.
(2) That the Landlord will on the written request of the
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Tenant made six months before the expiration of the term
hereby created and if there shall not at the time of such
request be any existing breach of non-observance of any
of the covenants on the part of the Tenant hereinbefore
contained at the expense of the Tenant grant to him a
lease of the demised premises for a further term of seven
years from the expiration of the said term at the same rent
and containing the like covenants and provisos as are
herein contained with the exception of the present
covenant for renewal.
(3) That if the tenant within five years from the
commencement of the term hereby created shall give to
the Landlord six months' notice in writing that he desires
to purchase the reversion in fee simple in the demised
premises to the Landlord upon the expiration of such
notice and on payment of the sum of $80,000 and of all
arrears of rent up to the expiration of the notice shall
convey the demised premises to the Tenant in fee simple
free from encumbrances.
PROVISO CLAUSES
PROVIDED ALWAYS
FORFEITURE
(1) If the rents hereby reserved or any part thereof shall be
CLAUSES
unpaid CLAUSE: twenty-one days after becoming payable
(whether formally demanded or not) or if any covenant on
the Tenant's part herein contained shall not be performed
it shall be lawful for the Landlord at any time thereinafter
to re-enter upon the demised premises or any part thereof
in the name of the whole and thereupon this demise shall
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absolutely determine but without prejudice to the right of
action of the Landlord in respect of any breach of the
Tenant's covenants herein contained.
(2) If either party shall desire to determine the present demise
at the expiration of the first three years of the said term
and shall give to the other party six months' previous
notice in writing of such his desire then immediately on
the expiration of such notice the present demise and
everything herein contained shall cease and be void but
without prejudice to the remedies of either party against
the other in respect of any antecedent claim or breach of
covenant.
(3) Any notice under this lease shall be in writing. Any notice
to the Tenant shall be sufficiently served if left addressed
to him on the demised premises or sent to him by
registered post at his last known address in (Name of
County) and any notice to the Landlord shall be 42
Landlord and Tenant 2020/2021 sufficiently served if
delivered to him personally or sent to him by registered
post at his last known address in (name of country).
IN WITNESS whereof the parties hereto have hereunto set
their respective hands and seals the day and year first above
written.
ATTESTATION
SIGNED AND DELIVERED by
)
CLAUSES
the ........ as and for his
)
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Unit 2: Covenants of Landlord &Tenant
Upon completion of this unit, students should be able to:
1. Recognise and be able to draft the various covenants contained in a lease;
2. Identify and distinguish the covenants on the part of both the landlord and tenant
which are contained in a lease;
3. Define and/or explain the characteristics of each of the covenants referred to above in
(ii) with respect to decided cases and/or legislation;
4. Determine from instructions received whether there has been a breach of any
covenant(s) contained in a lease;
a. Advise/explain the rights and/or liabilities accruing to the parties as a result of such
breach(es); and
b. Advise as to the remedies available for breach of any covenant contained in a lease.
5. Prepare an opinion with respect to your advice given in (4) above.
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WHAT IS A COVENANT?
The term "covenant" is of Latin origin (con venire), meaning a coming together. It
presupposes two or more parties who come together to make a contract, agreeing on
promises, stipulations, privileges, and responsibilities. There are three main kinds of
covenants:
1. EXPRESS: An express covenant is one expressly agreed between the parties and inserted
in the lease. The law does not require any particular form to create an express covenant.
In a written agreement under seal, any words showing the intent of the parties to do or
not to do a certain thing will create an express covenant.
2. IMPLIED: An implied covenant is one inferred or implied in law to effectuate the
intention of the parties from the words used. Implied covenants on the part of a lessor
or a lessee may arise when there is a satisfactory basis in the express contract of the
parties which makes it necessary to imply certain duties and obligations to effect the
purposes of the parties to the contract made, but such covenants can be justified only
upon the ground of legal necessity arising from the terms of a contract or the substance
thereof.
3. STATUTORILY IMPLIED COVENANTS: A statutorily implied covenant is one which
is created by statute e.g. See Barbados Property Law Act cap 236 section 157 and 158.
LANDLORD’S COVENANTS
1. Covenant for Quiet Enjoyment
2. Non-Derogation from Grant
3. Warranty of Availability and Fitness for Human Habitation
4. Covenant to Renew the Lease – Option to Renew
5. Covenant to Grant an Option to Purchase the Reversion – Option to Purchase
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1: Covenant for Quiet Enjoyment
•
“The implied covenant for quiet enjoyment is not an absolute covenant protecting a
tenant against eviction or interference by anybody, but is a qualified covenant
protecting the tenant against interference with the tenant's quiet and peaceful
possession and enjoyment of the premises by the landlord or persons claiming, through
or under the landlord.
•
The basis of it is that the landlord, by letting the premises, confers on the tenant the
right of possession during the term and impliedly promises not to interfere with the
tenant's exercise and use of the right of possession during the term.” Per Pearson L.J @
pg. 511 in Kenny v Preen [1963] 1 Q.B. 499.
•
Examples of this covenant includes:
o “The landlord covenants to permit the Tenants if it punctually pays the rent payable
hereunder AND observes the agreements, obligations and stipulations on its part
herein contained, to enjoy the demised premises without any disturbance by the
Landlady or those lawfully claiming under or in trust for it.”
o “The tenant paying the rent hereby reserved and performing and observing the
several covenants on his part and the conditions herein contained shall peaceably
hold and enjoy the demised premises during the said term without any interruption
by the landlord or any person rightfully claiming under or in trust for him.”
•
This covenant contains the following terms:
a) that the tenant shall be put into possession (only in territories where the doctrine
of ‘interesse termini’ still survives);
b) that the tenant shall have quiet enjoyment of the premises.
•
This covenant may be express, implied or statutorily implied. Note however that an
express covenant for quiet enjoyment excludes an implied covenant for same.
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•
See Miller v Emcer Products Ltd [1956] Ch. 304 per Romen L.J. @ p.318 et seq.
o L demised premises to T together with a right to use 2 lavatories on upper floors
which were occupied by a 3rd party. Grant contained a covenant for quiet enjoyment
of the demised premises without interruption from landlords or superior landlords
or any person rightfully claiming under on trust for them. T was prevented by 3rd
party from exercising his right to use one of the lavatories and sued L alleging a
breach of an implied covenant that they had a good title to convey him the right to
use the lavatories and alternatively a breach of the implied covenant that they would
put him into possession of the right demised to him. the 3rd party held under a title
paramount to L and to the superior landlords mentioned in the express covenant.
o The right which L had purported to grant was a legal easement and was part of the
demised premises to which the covenant for quiet enjoyment contained in the
underlease related.
o That qualified covenant displaced any covenant for title or quiet enjoyment implicit
in the demise.
o Where there was a formal demise, it was unnecessary to imply an obligation to put
the tenant into possession of the premises from the relationship of L and T as was
done in Coe v Clay and Jinks v Edwards, for there was implicit in the demise a
covenant for title and quiet enjoyment which extended to putting T into possession
of the premises leased to him at the outset of his term as well as entitling him to
remain in possession thereafter.
o Whether an obligation to put T in possession even if it was implied could be
applicable to the grant of an easement to use accommodation in common with
others – present case T was put into possession of all that part of the subject matter
of the grant of which he was entitled to exclusive possession.
o That even if such an obligation could and should be implied in a formal demise, it
would be in pari materia with the implied covenant that T should remain in
possession thereafter and it would therefore be displaced by an express covenant for
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quiet enjoyment such as that in the underlease which has displaced the covenant
implied from the word “demise”.
•
The express covenant may be: a) qualified/restricted, or b) absolute.
o The qualified/restricted covenant is the more usual of the two and by it the landlord
undertakes that the tenant will peaceably hold and enjoy the demised premises
without interruption by the landlord or persons claiming through or under him. It
protects only against the acts of the landlord, his successors in title and persons
authorised by him to execute the acts complained of.
o The absolute express covenant for quiet enjoyment includes the guarantee given by
the qualified/restricted version. The absolute covenant however, also includes an
undertaking against similar interruption by persons claiming title paramount to the
landlord’s title.
•
The implied covenant for quiet enjoyment is implied by common law from the use of
the word ‘demise’ and of any other equivalent words, of letting. The covenant is similar
in effect to the qualified/restricted express covenant.
•
Under the covenant for quiet enjoyment, the tenant is entitled to be put into possession.
o Coe v Clay (1829) 5 Bing 440;
▪
"Held: a lessor assumed an - implied obligation that the leased premises would
be available for entry by the lessee at the beginning of the term. There has been
legal controversy as to whether the obligation is part of or independent of the
covenant for quiet enjoyment. Historically, the covenant for quiet enjoyment
was implied from the word "demise" in a written lease. In Coe the renting was
oral, and the rule that the covenant for quiet enjoyment would be implied in an
oral renting was not established until Markham v. Paget, [1908] 1 Ch. 697. This
is the basis of the legal theory that the "Coe covenant" is independent of the
covenant for quiet enjoyment. The modern view, however, is that the "Coe
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covenant" is incorporated in the implied covenant for quiet enjoyment. To clarify
the matter, we recommend that the lessor's obligation to give his lessee actual
possession be codified in a statutory covenant for quiet enjoyment.
▪
Principle: A holder of a mere interessee termini is unable in law to maintain an
action on a covenant for quiet enjoyment where the alleged breach relates to
disturbance of possession.
▪
He, who lets, agrees to give possession, and if he fails to do so, the lessee may
recover damages against him, and is not driven to bring an ejectment.
o Jinks v Edwards (1856) 11 Ex. 775;
▪
A person who actually lets premises must give possession.
▪
Where a landlord agrees with a tenant to let premises and the agreement
contains words of present demise so as to amount to a lease, not merely an
agreement to let or grant a lease of the premises at a future time, the landlord is
bound to give possession of those premises to the tenant.
o Markham v Paget [1908] 1 Ch. 697 per Swinger Eady J @ p.712-716
▪
P, by agreement, agreed to let the underlying minerals to a mining company
together with usual powers of working. The mining lease empowered the
company to let down the surface, but there was a provision that, in case serious
damage by subsidence was reasonably anticipated, the company might, without
paying for the same, leave sufficient coal as should be agreed upon by the
demising trustees for support.
▪
A contract for quiet enjoyment without interruption by D or anyone claiming
through her was implied by the word “let”.
o Wallis v Hands [1893] 2 Ch. 75 @ p.84-85
▪
Facts: In 1884 N granted a lease of certain coal mines to P and others for a term
of forty-five years from June 24, 1884. In 1887 N, with the oral assent of the
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lessees, granted a new lease to plaintiff of, amongst other property, the same coal
mines, for a term of forty-two years from June 24, 1887, but plaintiff did not enter
into possession of the mines under this lease, or do any working thereunder
according to the covenants. The lease of 1884 was subsequently assigned by the
lessees under that lease, and the coal mines comprised therein were worked by
the assignees. Plaintiff brought an action against N and the assignees of the lease
of 1884, claiming a declaration of his title and damages against N for breach of
the covenant for quiet enjoyment implied in the lease of 1887, and damages
against the assignees of the lease of 1884 who had worked the coal. Plaintiff
alleged a binding agreement between him and the lessees of the 1884 lease,
which precluded in equity the lessees and those claiming under them with notice
from setting up the lease of 1884 against him.
▪
Held: the lease of 1884 was not surrendered by operation of law; there was no
such agreement between plaintiff and the lessees of the 1884 lease as alleged by
plaintiff; plaintiff having only an interesse termini, and never having been in
possession, he could not maintain an action on the covenant for quiet
enjoyment, or an action for trespass, or for damages in respect of trespass.
▪
Principle: A person who had only an interesse termini could not maintain an
action on a covenant for quiet enjoyment; neither can he maintain an action for
trespass, or for damages.
▪
The essence of a breach of a covenant for quiet enjoyment in a lease appears to
me to be a disturbance of the lessee’s possession (Chitty, J).
▪
Such an implied covenant [for quiet enjoyment] is, speaking generally, an
unqualified covenant, but extends only to lawful interruptions (Chitty, J).
▪
The grant of a new lease in possession to a stranger, with the oral assent of the
lessee under a prior subsisting lease, does not operate as a surrender at law of
the prior lease, unless the tenant under such lease gives up possession to the new
tenant at or about the time of the grant of the new lease to which he assents.
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▪
Note: this decision is relevant only in the territories where the doctrine of
‘interesse termini’ still survives. As such, in these territories where the lessee has
not been put into/entered into possession, no successful suit on the covenant for
quiet enjoyment can be maintained. The covenant for quiet enjoyment implied
from the use of the word ‘demise’ or other equivalent words of letting, also
entitles the tenant to be put into possession, i.e., gives him the ‘interesse
termini’. This right can therefore support an action against the landlord in the
absence of the tenant being in possession.
•
This decision is relevant only in the territories where the doctrine of ‘interesse termini’
still survives. As such, in these territories where the lessee has not been put into/entered
into possession, no successful suit on the covenant for quiet enjoyment can be
maintained. The covenant for quiet enjoyment implied from the use of the word
‘demise’ or other equivalent words of letting, also entitles the tenant to be put into
possession, i.e., gives him the ‘interesse termini’. This right can therefore support an
action against the landlord in the absence of the tenant being in possession.
o Kenny v Preen [1963] 1 QB 499
▪ The landlord of premises let as a separate dwelling on a tenancy which would be
protected by the Rent Acts, 1920 to 1957, only if (which was in dispute) the
tenancy was an unfurnished one, gave the tenant a notice to quit, the validity of
which was disputed. Thereafter he threatened, both by letters to the tenant, and
by shouting at her and banging on her door, to take physical action to evict the
tenant and remove her belongings from the demised premises. The landlord
persisted in these direct threats to the tenant herself despite letters from her
solicitor asserting that the notice to quit was invalid and that the tenancy was
unfurnished, and therefore protected.
▪ The tenant brought an action in the county court against the landlord for
damages for breach of his covenant for quiet enjoyment, for an injunction to
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restrain the landlord from further interference with her quiet enjoyment of the
premises, and for a declaration that her tenancy was protected by the Rent Acts.
At the hearing the landlord did not dispute the tenant’s right to possession and
the tenant gave no evidence of special damage, the county court judge granted
the injunction sought, awarded the tenant £100 damages and refused the
declaration. On appeal by both parties:
▪ Held inter alia: The landlord was in breach of his covenant for quiet enjoyment
and an injunction had rightly been granted because:
a) on the facts there had been a course of conduct on the landlord’s part amounting
to direct physical interference with the tenant’s enjoyment of the premises demised
and
b) even if there had been no direct physical interference with the tenant’s possession
and enjoyment of the demised premises, the landlord’s conduct had seriously
interfered with the tenant’s proper freedom of action in exercising her right of
possession, had tended to deprive her of the full benefit of this right, and was an
invasion of her right to remain in possession undisturbed, and so in itself
constituted a breach of the covenant.”
▪ Note: Definition of the term `enjoy’ in relation to the covenant per Pearson L.J
@ pg. 511 “I think the word "enjoy" used in this connection is a translation of the
Latin word "fruor" and refers to the exercise and use of the right and having the
full benefit of it, rather than to deriving pleasure from it”.
o Ram v Ramkissoon (1968) 13 WIR 332
▪
Facts: the appellant was a statutory tenant of two rooms in a central portion of a
building where he carried on business as a jeweler. The building was old and in
a bad state of repair, and its two end portions had been unoccupied for several
years. The respondent landlord, who owned the whole building, wished to obtain
vacant possession of the central portion also. While ejectment proceedings were
pending, the respondent removed the galvanised iron sheets from the roof of
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both end portions of the building. The appellant complained that, as a direct
consequence of the removal of the roof, rainwater seeped through the rooms he
occupied, causing annoyance, discomfort and physical damage to his property.
He claimed damages for, inter alia, breach of the landlord’s implied covenant for
quiet enjoyment. The Court of Appeal of Trinidad and Tobago held, reversing
the trial judge’s decision, that the damage suffered by the appellant was
sufficiently substantial to constitute a breach of the covenant for quiet
enjoyment. Wooding CJ said:
▪
“It was agreed that a covenant for quiet enjoyment must be implied from the
respondent’s contract of letting. It was also agreed that, to constitute an
actionable breach, the interference with the tenant’s enjoyment of the tenancy
must be substantial: see Browne v Flower. But I am not at all sure that the parties
are at one as to what is meant by substantial. Be that as it may, what was alleged
here? The appellant’s tenancy related to the central portion of a building which
was to a large extent protected by the two end portions against wind and
weather. The rented premises were deprived of that protection by the deliberate
act of the respondent who was under no pressure or notice to do what he did.
The end portions had been unoccupied and in a state of dilapidation for some
five or six years at least, so it seems odd that he should suddenly have decided to
remove their roofs. He had terminated the appellant’s contractual tenancy and
was currently pursuing ejectment proceedings to put an end to his statutory
tenancy. Three months after instituting these proceedings, he effected the first
removal. And three months later he began some more. The appellant points to
all this as evidencing a resolve on the part of the respondent, and a carrying out
of the resolve, to nudge him out of his possession of the rented premises. It may
well be so. But, even then, the facts here would fall very far short of those in
Kenny v Preen, upon which his counsel relied.
▪
Here, it may be, as I said, that the respondent had begun to embark upon a
campaign deliberately planned to drive the appellant out of his possession of the
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rented premises. But there was no finding to that effect. Nor was it any part of
the appellant’s case at the trial ... although he admitted taking off the galvanised
roofing while the ejectment proceedings were pending, he denied that he did so
in order to ‘smoke out’ the appellant. Nevertheless, I think there was some
physical interference with the enjoyment of the tenancy. By depriving the central
portion of the building of such protection against wind and weather as the two
end portions afforded, there was, whenever rain fell, enough irruption of water
upon the rented premises to cause Dr Singh to regard the seepage as at least not
minimal. So, there was an invasion of the appellant’s right as tenant to remain in
possession undisturbed by such irruptions. In my judgment, that was damage
sufficiently substantial, if only because of its frequency, to constitute a breach of
the covenant. And I so hold.”
Breach of the Covenant for Quiet Enjoyment
•
This covenant is broken where the ordinary and lawful enjoyment of the demised
premises is substantially interfered with by the acts or omissions of the landlord or
persons lawfully claiming under him or persons with title paramount where the
covenant is absolute. Whether the covenant has been broken is, in each case a question
of fact.
Situations that will not Amount to Substantial Interference
Since there must be substantial interference with the enjoyment of the premises let, the
following will not constitute a breach:
•
Temporary Disturbance
o A disturbance of the enjoyment of the premises caused by the lessor which is merely
temporary and which does not interfere with the lessee’s possession is not a breach
of the covenant. Please note that factors such the nature of the premises and the
length of time that the disturbance persists will be considered in determining if
there is or is not a breach.
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•
Privacy
o A mere interference with the comfort of persons using the demised premises by the
creation of a personal annoyance such as might arise from noise, invasion of privacy,
or otherwise is not enough to amount to a breach of the covenant.
•
Mere Noise or Disorderly Conduct
o A breach of a covenant of quiet enjoyment is not limited to direct and physical injury
to land and that excessive noise in principle may constitute a substantial
interference with the possession or ordinary enjoyment of the demised premises
however, noise generated by the normal and ordinary user of the premises will not
amount to breach of the covenant for quiet enjoyment. Mere noise or disorderly
conduct emanating from the landlord’s adjoining premises may not amount to
breach of the covenant for quiet enjoyment, although it may be actionable as a
nuisance or constitute derogation from the lessor’s grant if the latter participates in
it.
•
Sanderson v Mayor of Berwick Upon Tweed (1884) 13 QBD 547 per Fry L.J @ p.551
o Facts: the corporation demised a farm to Sanderson. Cairns, another tenant farmer
of the Corporation, was granted rights to use a drain across one of Sanderson’s fields
and to enter and repair it. Cairns’ right to use the drain was expressly reserved in the
lease to Sanderson. Water discharged by Cairns leaked through the drain and
flooded Sanderson’s land. Sanderson brought an action against the landlord
Corporation for breach of the covenant for quiet enjoyment.
o In the Court of Appeal Fry L.J said: “The damage here resulted to the plaintiff from
the proper user by Cairns of the drains passing through the plaintiff’s land which
were improperly constructed. In respect of this proper user Cairns appears to us to
claim lawfully under the defendants by virtue of his lease, and to have acted under
the authority conferred on him by the defendants. The injury caused to the field
appears to us to have been, within the meaning of the covenant contained in the
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lease to the plaintiff, a substantial interruption by Cairns, who is a person lawfully
claiming through the defendants, of the plaintiff’s enjoyment of the land, and so to
constitute a breach of the covenant for quiet enjoyment for which the defendants
are liable in damages.”
•
Manchester Rly Co. v Anderson [1898] 2 Ch. 394 per Lindly M.R.
o Facts: the plaintiff company, the assignee of the reversion, in the process of its
construction works, caused structural injury to the defendant’s house, rendered
access to the premises less convenient by erecting hoardings which blocked up half
the public thoroughfare and by taking a great number of carts along that street,
caused lead to be deposited on a passage along which the defendant tenant had a
right of way. It appears the inconvenience suffered by the defendant tenant was for
between two and four days.
o Held: That was too short and temporary interference to constitute a breach of
covenant for quiet enjoyment.
o Lindley M.R: “To say that partly blocking up a street, which is an inconvenience to
the public and an inconvenience to any one residing near the place, is a breach of
covenant for quiet enjoyment, is going far beyond any authority I am aware of.”
•
Owen v Gadd [1956] 2 QB 99401
o Facts: The plaintiff had a lease of a lock-up shop, that is, a place which will have a
shop window in which the goods sold are exhibited to attract customers. The lessor’s
contractor erected scaffolding in front of the windows and door of the shop in order
to effect repairs to the upper part of the premises which were occupied by the lessor.
The close proximity of the scaffold poles to the shop window and the men working
on the planks immediately above them impeded the access of the public to the shop
window. On the complaint of the plaintiff, the work was expedited and completed
in eleven days instead of the original estimated period of six weeks for completion.
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o The Court of Appeal upheld the decision of the trial court that the erection of the
obstruction to the shop constituted a breach of the covenant for quiet enjoyment,
which was an express term of the lease. Evershed M.R. in a judgment concurred in
by Birkett L.J. held that the placing of the scaffold poles, like hoardings, was certainly
not only physical, but also direct, and that, for there to be a breach of the covenant
for quiet enjoyment, it need not be shown that there was:
o “an actual physical irruption into or on the premises demised on the part of the
landlords or some persons authorized by them by their actually entering on or
invading the premises or say by the irruption thereon of water emitted from the
landlords’ premises elsewhere.”
•
Browne v Flower [1911] 1 Ch. 219 per Parker J. @ p.228
o Facts: A staircase which was used as the only access to an adjacent flat, was erected
between the windows of two of the bedrooms in the plaintiffs’ flat. It constituted an
invasion of the plaintiffs’ privacy, for it enabled persons using the staircase to see
directly into the rooms of the plaintiffs.
o Held: the invasion of the privacy and comfort of the plaintiffs was not a breach of
the landlord’s covenant for quiet enjoyment.
o Parker J: “to constitute a breach of such a covenant there must be some physical
interference with the enjoyment of the demised premises, and that a mere
interference with the comfort of persons using the demised premises by the creation
of a personal annoyance such as might arise from noise, invasion of privacy or
otherwise is not enough.”
o Principle: A landlord is not liable to an action founded on a mere interference with
the comfort of the tenant caused by acts of personal annoyance resulting from noise
or invasion of his privacy.
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•
Jenkins v Jackson (1888) 40 Ch D 71
o Facts: In a lease of two rooms in a building there was a covenant in the usual terms
by the lessor for quiet enjoyment. The lessor subsequently let a large room above
these two rooms to S for 30s a week, for the purpose of being used for dancing classes
and entertainments. The lessee of the two rooms below complained of a nuisance
occasioned by this user of the room in respect of (a) noise and vibration, and (b)
offensive behaviour on the staircase by persons who frequented the room, and
brought an action against his lessor and S, claiming an injunction.
o Held: (1) neither of defendants were legally liable for the nuisance upon the
staircase; and neither of the nuisances rendered the lessors liable as for a breach of
the covenant for quiet enjoyment; (2) both defendants were liable under the general
law for the nuisance as to noise, in respect of which plaintiff was entitled, under the
circumstances, to nominal damages, but not to an injunction.
o Kekewich, J: ‘Quietly’ does not mean undisturbed by noise. When a man is quietly
in possession it has nothing whatever to do with noise, though the word ‘quiet’ is
frequently used with reference to noise. ‘Peaceably and quietly’ means without
interference, without interruption of the possession.
•
Booth v Thomas [1926] 1 Ch 397
o Facts: In 1879 the owner of land, which was covered with slag and through which
ran a natural stream, enclosed the stream in a culvert. In 1886 he granted to certain
persons a lease for ninety-nine years of part of the land with the building on it,
retaining the adjoining part through which the culvert ran. The foundations of the
south wall of the building did not reach the soil, but rested on the slag. The lease
contained an express covenant by the lessor for quiet enjoyment. In 1924 the culvert
was in a bad state of repair, with the result that the stream broke through the culvert
and scoured away the foundations of the south wall, so that it collapsed. At that time
the lease was vested in the plaintiff, while the land under which the culvert ran and
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the reversion to the leased land, expectant on the determination of the lease, were
vested in the defendant.
o Held: that confining the stream in an artificial structure incapable of retaining it was
an act of the defendant, which had interrupted or disturbed the lessee's quiet
enjoyment of the land, and that therefore the plaintiff was entitled to succeed on
the ground of breach of covenant for quiet enjoyment.
o also, that the covenant was not confined to active disturbance of enjoyment, and
that the omission to keep the culvert in repair was an omission of a duty by the
owner to the adjoining landowner, which if neglected might cause damage to the
adjoining property, and that the owner was therefore bound to prevent such damage
by taking reasonable precautions.
o A covenant for quiet enjoyment is one which runs with the land (Sargant, LJ).
•
Southwark LBC v Mills [2000] LGR 138
o Facts: the appellants were local authority tenants, occupying multiple residential
flats, which had no sound insulation. The normal everyday activities of the tenants
in the neighbouring flats, such as their televisions, their babies crying, their cooking
and cleaning, their quarrels and their love-making were heard in the appellants’
flats. It was claimed on behalf of the appellant tenants that the landlords were in
breach of the covenant for quiet enjoyment. The tenants failed and their appeal from
a decision of the Court of Appeal to the House of Lords was not successful. The
House of Lords defined the limits of a covenant for quiet enjoyment as being
prospective in nature, and that the physical condition of a demised property as it
existed at the time of the grant could not give a cause of action, even though it might
have continuing consequences for the tenant.
o It was said that the appellants were deemed to have known that there would be
other tenants living normally in the neighbouring flats, and their complaint was
solely about a structural defect which existed when they took their tenancies. The
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landlord did not undertake to ensure that the premises would be given
soundproofing.
o Millet L.J: the covenant for quiet enjoyment is broken if the landlord or someone
claiming under him does anything that substantially interferes with the tenant’s title
to or possession of the demised premises or with his ordinary and lawful enjoyment
of the demised premise. The interference need not be direct or physical. Nor, in my
opinion, is it a necessary precondition of liability on the covenant that the acts
alleged to constitute the breach would support an action in nuisance.
o Principle: The interference with the quiet enjoyment of the property need not be
direct or physical.
o The limits of the implied covenant are also determined by the location of the
demised premises, the use to which adjoining premises are put at the time of the
demise or grant, or the use to which the parties are reasonably expected to put the
demised property in the future.
o A tenant takes a demised property not only in the physical condition in which he
found it at the time of the grant, but also subject to the uses which the parties
contemplated would be made of the parts retained by the Landlord.
o It is a question of fact and degree whether the acts of interference constitute a
breach.
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2: Non-Derogation from Grant
Where a lease is made for a particular purpose, the landlord is under an obligation not to
use adjoining land retained by him in such a way as to render the demised premises unfit
or materially less fit for that purpose.
The covenant has two applications:
1. where premises demised for some purpose and landlord does some act to
infringe/interfere with tenant’s use of premises;
2. where the lessor is the owner of property adjoining that leased – reasoning- If the
landlord wishes to do acts which might interfere with the tenant’s use of the demised
premises, then he must reserve his rights accordingly.
The covenant contains a promise that the landlord will not take away the means of the
tenant’s enjoyment of the property by the acts or omissions of himself or successors in title.
The act or omission must be substantial and be capable of rendering the premises less fit
for the purpose for which they were let. The covenant is not excluded by an express
covenant for enjoyment.
•
Grosvenor Hotel v Hamilton [1894] 2 QB 836 per Lindley M.R @p.840
o Facts: In an action by lessor against lessee for rent, the lessee counter-claimed for
damages from a nuisance caused by the lessor. It appeared that the lessor during the
lease had pumped water from land adjacent to the demised premises by means of
powerful engines, and that the lessee's house was damaged by the vibration caused
by the working of such engines, to such an extent that the premises became useless
to him, and that he was obliged to remove his business to another house, and in
consequence incurred expense. There was evidence that the house at the
commencement of the term was old and unstable, and that a house of ordinary
stability would not have been injured by the vibration.
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o Held: that the plaintiff was liable for damages under the counter-claim, for there
was an implied obligation on his part not to derogate from his grant by using his
adjoining property so as to interfere with the stability of the premises which he had
let, and that he could not, therefore, rely upon any defence founded upon the state
of such premises at the commencement of the term.
o also, that the damages recoverable by the defendant were not confined to the value
of the term which he had lost, but included all loss which had happened to him as a
natural consequence of the wrongful acts of the plaintiff, such as the expense of
removing his business to other premises.
o Lindley LJ: “Where there is an express covenant for quiet enjoyment in a lease it
excludes any implied one: Line v. Stephenson.”
•
Aldin v Clark [1894] 2 Ch. 437 per Stirling J @ p.444, 447
o Facts: a lease was granted in order that the land demised might be used by the lessee
for the purpose of carrying on the business of a timber merchant, and the lessee
covenanted to carry on such business.
o Held: the assigns of the lessor were not entitled to build upon adjoining property
acquired by them from him, so as to interrupt the access of air to sheds upon the
demised property used for drying timber, so as to interfere with the carrying on of
the business in ordinary course.
o Principle: Under a grant of land expressed in general terms, and not made for any
specific purpose, the grantee will not acquire a right by way of easement to the
access of air, except where such right is enjoyed through a definite aperture in the
nature of a window on the property granted, or through a definite channel over
adjoining property; but the grantor of land to be used for a particular purpose is
under an obligation to abstain from doing anything on adjoining property belonging
to him which would prevent the land granted from being used for the purpose for
which the grant was made.
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•
Rigby v Bennett (1882) 21 Ch. D 559
o Facts: The corporation of L were the owners of a piece of land which they divided
into building lots; plaintiff agreed to take one of these lots upon lease, and he began
to erect a building upon it under the superintendence of and according to plans
approved by the corporation surveyor. While the building was in progress defendant
agreed to take on lease the adjoining plot; and when plaintiff’s building was nearly
finished, and the lease was granted to him, defendant obtained his lease. A
considerable time afterwards he began building operations, excavating to a depth
much below the foundation of plaintiff, and thereby endangering the safety of the
building.
o Held: the two grants could not be held to be contemporaneous; there was nothing
in the circumstances of the case to deprive plaintiff of the right to lateral support,
and he was entitled to restrain defendant from excavating so as to let down plaintiff’s
building.
•
Kenny v Preen, Supra
•
Markham v Paget, Supra
Situations that will not Amount to Derogation from Grant
•
Privacy:
o This principle that a landlord must not derogate from the grant, extends to confer
on the tenant only rights in the nature of easements, and to prevent the landlord
from rendering the premises unfit or materially less fit for the particular purpose for
which the demise was made; a right of privacy could not exist as an easement, and
the premises is still fit for the purpose which it was demised.
•
Trade rivalry:
o
The presence of a trade rival in premises next door to those occupied by the trader
may, or may not, be a detriment to any particular business. The presence of a trade
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rival next door does not render the premises on which the trader is carrying on his
business unfit for that purpose, although it may incidentally reduce the profit ratio
to be earned in that business. N.B. However, where a lease contains an express
covenant that the landlord will not demise adjoining premises to a trade rival, he
will be in breach of the covenant not to derogate from grant where he does so.
•
Sensitive premises:
o Conduct which does not interfere with the ordinary comfort or enjoyment of life, or
injuriously affect an ordinary trade, does not become a nuisance merely because it
is injurious to a particular trade of an especially delicate nature. N.B. Where the
tenant informs the landlord of the special nature of his trade, he is liable for a breach
of covenant where his conduct on adjoining premises injuriously affects the tenant’s
trade.
•
Browne v Flower, Supra
o Facts: the owner of a building containing flats let one of the flats, with rooms on the
first and second floors, to a Mrs Lightbody, and subsequently let a flat on the ground
floor of the same building to the plaintiffs in the action. Mrs Lightbody's agreement
contained a clause prohibiting the use of her flat otherwise than as a dwelling-house,
and the plaintiffs' agreement comprised a covenant for quiet enjoyment, and it
stipulated that they should not use their flat otherwise than as a private residence.
Each agreement contained a stipulation that the tenants would do nothing on the
demised premises which might be a nuisance to the lessors or to the occupiers of
adjoining premises, or which might tend to lessen the value thereof. Subsequently,
Mrs Lightbody sub-divided her flat, with the consent of the lessors, and, with the
like consent, erected an iron staircase from the garden to an entrance to her flat on
the first floor. That part of the flat and the staircase were let to another person later.
The staircase was situated between the windows of two of the bedrooms of the
plaintiffs' flat, and the fact that it was used as the only access to that part of the flat
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which had been let off by Mrs Lightbody seriously affected the plaintiffs' privacy, as
a person using the staircase could see directly into the plaintiffs' rooms. The
plaintiffs brought the action to have the staircase removed, and for an injunction
and damages. It appears that they put their case on two grounds: (i) the express
covenant, and (ii) derogation from the grant.
o Held: there was no derogation from the landlord's grant since that principle
extended to confer on the tenant only rights in the nature of easements, and to
prevent the landlord from rendering the premises unfit or materially less fit for the
particular purpose for which the demise was made; a right of privacy could not exist
as an easement, and the flat was still fit for residential purposes.
o to constitute a breach of the landlord's covenant for quiet enjoyment there must be
some physical interference with the enjoyment of the demised premises and a mere
interference with the comfort of persons using the demised premises by the creation
of a personal annoyance such as might arise from noise, invasion of privacy, or
otherwise was not enough.
o the tenant of the first floor flat had not erected the staircase on premises demised
to her, but on adjoining land of the landlord, hence, even if there had been a letting
scheme which would have made the covenant relating to nuisance enforceable by
one tenant against another, neither she nor her sub-tenant would be liable.
o Parker J: “The plaintiffs next relied on the maxim that “no one can be allowed to
derogate from his own grant.” This maxim is generally quoted as explaining certain
implications which may arise where an owner of land grants or demises part of it,
retaining the remainder in his own hands, unless there be something in the terms
of the grant or demise, or in the circumstances of the particular case, rebutting the
implication. The real difficulty is in each case to ascertain how far such implications
extend.
o But the implications usually explained by the maxim that no one can derogate from
his own grant do not stop short with easements. Under certain circumstances there
will be implied on the part of the grantor or lessor obligations which restrict the user
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of the land retained by him further than can be explained by the implication of any
easement known to the law. Thus, if the grant or demise be made for a particular
purpose, the grantor or lessor comes under an obligation not to use the land retained
by him in such a way as to render the land granted or demised unfit or materially
less fit for the particular purpose for which the grant or demise was made.
o Aldin v Latimer Clark, Muirhead & Co, Grosvenor Hotel Co v Hamilton and Herz v
Union Bank of London… In none of these cases would any easement be created, but
the obligation implied on the part of the lessor or grantor would be analogous to
that which arises from a restrictive covenant. It is to be observed that in the several
cases to which I have referred the lessor had done or proposed to do something
which rendered or would render the demised premises unfit or materially less fit to
be used for the particular purpose for which the demise was made. I can find no case
which extends the implied obligations of a grantor or lessor beyond this. Indeed, if
the implied obligations of a grantor or lessor with regard to land retained by him
were extended beyond this, it is difficult to see how they could be limited at all.
o It is quite reasonable for a purchaser to assume that a vendor who sells land for a
particular purpose will not do anything to prevent its being used for that purpose
but it would be utterly unreasonable to assume that the vendor was undertaking
restrictive obligations which would prevent his using land retained by him for any
lawful purpose whatsoever merely because his so doing might affect the amenities
of the property he had sold. After all, a purchaser can always bargain for those rights
which he deems indispensable to his comfort.
o Under these circumstances, the question is whether the existence of the staircase
renders the plaintiff’s premises unfit or materially less fit to be used for the purposes
for which they were demised; that is, for the purposes of a residential flat. In my
opinion, it does not. The two rooms in question can be and still are used for the
same purposes for which they were used prior to the erection of the staircase. It is
only the comfort of the persons so using the rooms that is interfered with by what
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has been done. Either they have less privacy, or, if they secure their privacy by
curtains, they have less light.”
•
Port v Griffith [1938] 1 All ER 295 per Luxmoore J @ 299
o Facts: The defendants let a shop for a term of 21 years to the plaintiff, the latter
covenanting to use and occupy the premises and to permit the same to be used and
occupied as a shop for the retail business for the sale of wool and general trimmings,
and for no other purpose without the consent in writing of the defendants. Some 6
years later, the defendants let the adjoining shop subject to a similar covenant, the
business stated being for the sale of tailor and dressmaking trimmings and cloths.
The plaintiff contended that this was a derogation from the grant of the lessor, as
frustrating the purpose for which, in the contemplation of both parties, the premises
were let to the plaintiff.
o Held: it was not within the reasonable contemplation of the parties that the
defendants were putting themselves under an obligation not to let their adjoining
property to a trade rival of the plaintiff's.
o Luxmore J: “Applying what was said by Parker J (Browne v Flower), to the facts of
the present case, the question to be determined appears to be: Has the letting by the
defendants to Fisher of Shops Nos 4 and 5 rendered the plaintiff's Shop No 3 unfit,
or materially less fit, to be used for the purposes for which it was demised?
o The presence of a trade rival in premises next door to those occupied by the trader
may, or may not, be a detriment to any particular business. I do not think that I
should be justified in saying that the presence of a trade rival next door must of
necessity be a detriment, but whatever the view may be, the presence of a trade rival
next door does not render the premises on which the trader is carrying on his
business unfit for that purpose, although it may incidentally reduce the profit ratio
to be earned in that business. It would be unreasonable to assume that, because the
defendants let Shop No 3 for the particular business described in the lease, the
defendants were undertaking restrictive obligations which would prevent them
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from using or letting any of their other properties for any lawful purpose, which
would include the carrying on of a rival business, and would compel them to insert
a covenant restraining the carrying on of any business similar to the plaintiff's
business in any subsequent lease of any of the property retained by them, for it
would seem to me to be difficult to confine the case to those shops which are actually
adjoining, or to draw a line defining which of the premises were to be subjected to
such a restriction. As Parker J, said in Browne v Flower, at p 227: 'Much as I
sympathise with the plaintiffs, it would, in my opinion, be extending the
implications based on the maxim that no one can derogate from his own grant to an
unreasonable extent if it were held that what has been done in this case was a breach
of an implied obligation.'
o Those words appear to me to be applicable to express my views with regard to the
present case. In my judgment, the present case is, in substance, covered by the
decision in Browne v Flower.
o The matter does not stop there, however, for that case was applied and followed by
Branson J, in the O'Cedar Ltd v Slough Trading Co Ltd [1927] All ER Rep 446, to
which I have already referred. In that case, Branson J, after referring to Lyttelton
Times Co Ltd v Warners Ltd, and Harmer v Jumbil (Nigeria) Tin Areas Ltd, said, at
p 127: 'In the case before me, however, the purpose for which the premises were
demised to the plaintiffs has not been frustrated by what has been done by the
defendants. The plaintiffs can still conduct their business as they were able to before
the surrendered premises were let to Davies.'
o He goes on to state the particular facts in that case, and points out that the question
which it was necessary to consider was: 'whether the principle that a lessor may not
derogate from his grant extends beyond cases in which the purpose of the grant is
frustrated to cases in which that purpose can still be achieved albeit at a greater
expense or with less convenience.'
o After referring to a number of cases, to which my attention was also called, he said,
at p 129: 'The contention is that the defendants, by doing something on the adjoining
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land which is not in itself unreasonable or unbusinesslike, which has not affected
the demised premises physically in any way, which has not rendered it less easy or
less legal to carry on upon them the business for which they were demised, but
which has had the effect of adding substantially to the expense of carrying on that
business there, have derogated from their grant. I should be extending the
application of the principle into a region quite different from that in which it has
hitherto been applied if I were to hold that it applied to anything done by a lessor
upon adjoining land which, while not otherwise affecting the demised premises or
their user in any way, merely made it more expensive than it was before for the lessee
to carry on his business on the demised premises. I do not think such a case comes
within that principle at all.'
o He concludes by saying, at p 130: 'I cannot think that it was within the reasonable
contemplation of the parties that the defendants were putting themselves under
such an obligation to the plaintiffs as that contended for in this case.'
o In my judgment, the decision of Branson J, applies, and governs the present case. I
am unable to hold that it was within the reasonable contemplation of the plaintiff
and defendants that the defendants were putting themselves and their remaining
property under such an obligation to the plaintiff as that contended for by her. For
these reasons, I think that the action fails, and must be dismissed with costs.”
•
Robinson v Kilvert (1889) 41 Ch. D 88 Judgment of Lindly L.J
o Facts: A landlord let a floor to a tenant for a paper warehouse, retaining the cellar
immediately below. He afterwards commenced in the cellar a manufacture which
required the air to be hot and dry, and employed a heating apparatus. This raised
the temperature on the floor of the tenant's room to about 80º, but the general air
of the room was never nearly so high, and it did not appear that the workpeople
were inconvenienced. The tenant sued to restrain the landlord from heating the
cellar, on the ground that the heat dried his brown paper and made it less valuable,
though it was not such a heat as would injure paper generally. The landlord did not
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know at the time of the letting that the tenant was going to store any particular kind
of paper which was liable to be deteriorated by a heat which would not hurt paper
generally.
o Held: the landlord was not liable either on the ground of nuisance or of implied
agreement for quiet enjoyment.
o Principle: If a person carries on upon his property some process which is in itself
noxious, a neighbour may be entitled to restrain him from carrying it on so as to
cause damage to him; but if the process is not in itself noxious, it cannot be
complained of as a nuisance unless it interferes with the ordinary enjoyment of life
or the ordinary use of property.
o A landlord who lets part of his property for the purpose of a particular trade, is not
to be taken as having entered into an implied contract precluding him from a
reasonable and ordinary use of the remainder, on the ground that such use injures
a particular class of his tenant's goods, it not having been known to him at the letting
and not being a matter of common knowledge that that particular class of goods
was liable to be so injured, nor is such user by the landlord a breach of his covenant
for quiet enjoyment.
o Lindley L.J: “In Sanderson v. Mayor of Berwick-upon-Tweed Lord Justice Fry stated:
‘But it appears to us to be in every case a question of fact whether the quiet
enjoyment of the land has or has not been interrupted; and, where the ordinary and
lawful enjoyment of the demised land is substantially interfered with by the acts of
the lessor, or those lawfully claiming under him, the covenant appears to us to be
broken, although neither the title to the land nor the possession of the land may be
otherwise affected.’
o This doctrine is in advance of the older authorities, but I accept it, and if the effect
of what the Defendants are doing had been to make the Plaintiff's room unfit for
storing paper, I should have been prepared to hold that there was a breach. But the
evidence falls short of that - it does not shew that the room is made unfit for a paper
warehouse - but only that it is made unfit for storing particular kind of paper. Now
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if a tenant wants extraordinary protection for a particular branch of trade, he must
bargain for it in his lease.”
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3: Warranty of Availability and Fitness for Human Habitation
Common Law
•
In the absence of an express covenant, there is no implied warranty that the demised
premises are suitable or available for any particular purpose. This is so even where the
landlord knows the particular purpose for which the premises are being leased. It is for
the tenant to satisfy himself that the premises are fit for his purpose and to contract
accordingly.
•
Lane v Cox (1897) IQB 415
o Principle: a landlord who lets an unfurnished house in a dangerous condition, he
being under no liability to keep it in repair, is not liable to his tenant, or to a person
using the premises, for personal injuries happening during the term, and due to the
defective state of the house.
o Facts: The defendant was owner of a house which he let unfurnished to a weekly
tenant. There were no covenants to repair on the part of either the landlord or the
tenant. The plaintiff was a workman, who came upon the premises at the request of
the tenant for the purpose of moving some furniture. While so employed the
plaintiff was injured owing to the defective state of the staircase in the house. There
was evidence that at the time the house was let the staircase was in an unsafe
condition. The plaintiff brought this action to recover damages for the injuries he
had sustained, and it was tried before the Lord Chief Justice, who entered a nonsuit.
The plaintiff appealed.
o Lopes L.J: “What is complained of in this case is a defect in the staircase of a house
let by the defendant to a tenant. It is said that the lessor is liable for an injury
sustained by a workman employed by the tenant. There is no liability either on the
landlord or the tenant to put or to keep the demised premises in repair, unless such
liability is created between them by contract. No contractual relation in this respect
is implied on the letting of an unfurnished house. A landlord who lets a house in a
dangerous or unsafe state incurs no liability to his tenant, or to the customers or
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guests of the tenant, for any accident which may happen to them during the term,
unless he has contracted to keep the house in repair. That disposes of this case so
far as any liability of the landlord arising out of contract is concerned. But then it is
said that the claim of the plaintiff may be grounded on the negligence of the
defendant. There cannot be a liability for negligence unless there is a breach of some
duty; and no duty exists in this case to the tenant, and none can be alleged to
strangers. The case differs entirely from those in which property is in a dangerous
state by reason of which an injury happens to one of the public on a highway, or to
the occupier of an adjoining house. I think the appeal should be dismissed.”
•
Elder v Auberbach (1949) 2 All ER 692
o Facts: By the Defence (General) Regulations, 1939, reg 68CA (1): “No person shall
except with the consent of the local housing authority use for purposes other than
residential purposes any housing accommodation which has been used for
residential purposes at any time since December 31, 1938 …”
o When negotiating for the letting of rooms on the second floor of premises, which to
his knowledge had been used for residential purposes from January to August, 1939,
the lessor told the prospective lessee that it was all right for him to let them for office
purposes and that they had not been used for residential purposes after 31 December
1938. In the lease subsequently made, in March, 1947, the lessee covenanted to use
and occupy the rooms for professional purposes and not otherwise. On learning of
the position, the local housing authority informed the lessor that the occupation of
the premises was a contravention of the Defence (General) Regulations, 1939, reg
68CA (1), and the lessor applied for consent to user for professional purposes. On 22
May the authority gave consent to the use of the ground and first floors (used by the
lessor) for professional purposes and decided to take no action to enforce the
regulation in respect of such use of the second and third floors by the existing
tenants on an undertaking by the lessor to re-allocate accommodation on the
ground and first floors to enable the tenants to release the other two floors for
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residential use. In an action by the lessee claiming repayment of rent which he had
paid, he contended (a) that the agreement was null and void for illegality, and,
alternatively, (b) that the agreement was voidable by reason of an innocent
misrepresentation made by the lessor that the premises had not been used for
residential purposes since 31 December 1938; (c) that the agreement was entered
into under a mutual mistake of fact respecting such user or (in an amendment to
the statement of claim) on a unilateral mistake; and (d) that there was an implied
term or warranty in the agreement that the lessee could use the premises for
professional purposes and that the warranty had been broken. The lessor
counterclaimed (inter alia) for the balance of the rent due under the tenancy
agreement. Evidence of the lessor's knowledge of the truth when making his
misstatement was given on behalf of the lessee without objection from the lessor,
and was also dealt with by the lessor in his evidence.
o Held:
(i)
the agreement was not ex facie illegal because (a) the covenant as to user,
being really a negative covenant (i.e. not to use the premises otherwise than
for professional purposes), did not impose any obligation on the lessee to use
the premises at all, and (b) the agreement did not require the lessee to enter
into occupation without first obtaining the consent of the local housing
authority to professional user, and, therefore, the agreement did not
necessarily involve an infringement of the Defence (General) Regulations,
1939, reg 68CA (1).
(ii)
the covenant as to user was not per se evidence that the parties contemplated
an unlawful performance because they might have intended to obtain the
consent of the local authority.
(iii)
the lease was unenforceable by the lessor because, though not intending to
break the law himself, he intended that the lessee, as his innocent
instrument, should break it; by granting the lease he had taken an overt step
in carrying out his illegal intention and the fact that his attempt to break the
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law was frustrated was immaterial; and, even if the subsequent consent of the
local housing authority legalised the professional use of the premises, the
lessor's conduct disentitled him from obtaining the aid of the court to enforce
the agreement.
(iv)
although the illegal object of the lessor was not pleaded, the facts in regard
thereto had been given in evidence for the lessee without objection by the
lessor and had been fully dealt with in evidence by the lessor, so that all the
relevant circumstances were before the court; although it was submitted,
after the evidence was completed, that it ought not to have been received and
that the court should disregard it, public policy required that the court
should not ignore an illegality which had been brought to its attention, and,
therefore, it must refuse to allow the lessor to enforce the agreement.
(v)
the rent paid by the lessee was properly paid under a valid agreement and
the lessor's illegal object did not by itself give any right of action to the lessee;
as the misrepresentation regarding user of the premises after 1938 was
pleaded
only
as
innocent
misrepresentation,
and
as
innocent
misrepresentation was not a ground for the rescission of an executed lease,
the lessee was not entitled to rescission: Angel v Jay ([1911] 1 KB 666),
followed; on a demise of real property there was no warranty implied by law
that the property was fit for the purpose for which it was let, and this
principle applied whether the premises were physically or legally unfit, and,
therefore, the plea of implied warranty failed: Hart v Windsor (1844) (12 M &
W 68), followed; on the facts, there was no mutual mistake and, although
there was a unilateral mistake on the lessee's part, the effect of the mistake
was exhausted when the lease was made, and the rent was paid, not because
of the mistake, but because the lease compelled it; as the lessee had not
pleaded fraudulent misrepresentation, the misrepresentation must be
assumed to be innocent and, on such assumption, there was nothing unjust
or unconscientious in allowing the lessor to retain the money, and, therefore,
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the rent was not recoverable as money had and received; and, accordingly,
the claim for recovery of rent paid under the lease failed.
o Devlin J: “It is the business of the tenant, if he does not protect himself by an express
warranty, to satisfy himself that the premises are fit for the purpose for which he
wants to use them, whether such fitness depends on the state of their structure or
the state of the law or on any other relevant circumstances.”
•
Bottomly v Bannister (1932) 1 ICB 458
o Principle: At common law in the absence of express contract a landlord of an
unfurnished house is not liable to his tenant, nor is a vendor of real estate liable to
his purchaser, for defects in the house or land rendering it dangerous or unfit for
occupation, even if the defects are due to his construction or are within his
knowledge.
o Facts: a firm of builders, having built several houses on an estate of which they were
the owners, sold to one C. B. a house which was nearly completed. They agreed to
complete the house by the end of October, 1929, and to make it fit for habitation,
and like in decoration and design to the other houses on the estate. The agreement
contained a clause enabling C. B. to go into possession before completion as tenant
at will. The house, like the others on the estate, was fitted with a particular make of
boiler, which was placed in the kitchen and was heated by a Bunsen gas burner.
Above the kitchen was a bathroom. From a cupboard in the bathroom a linen chute
ran down to a cupboard in the kitchen connected with the boiler by a pipe. There
was no flue to carry gas or fumes from the burner to the outward air. C. B. with his
wife and child went into occupation on September 28. The C. Gas Company's
inspector examined the gas fittings and set the regulator fitted to the burner so that
45 cubic feet of gas and no more passed into the burner per hour. On October 26,
C. B. and his wife were found dead in the bathroom, poisoned by carbon monoxide
gas. A few days afterwards the regulator was found so set that much more than 45
cubic feet could pass into the burner in an hour. The boiler with its burner and the
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linen chute were parts of the realty. The boiler with the burner properly regulated
was not dangerous. It was the business of the Gas Company and not that of the
builders to regulate the flow of gas to the burner.
o In an action under the Fatal Accidents Act, 1846, by the administrators of C. B. and
his wife against the builders:
o Held: that there was no evidence of a breach of any duty which the law cast upon
the defendants as vendors or lessors of the house towards C. B. or his wife, and that
the plaintiffs could not recover.
Exceptions to the Common Law
i.
Furnished houses.
• There is an implied term in leases for furnished premises that they shall be fit for
human habitation at the start of the tenancy.
• Smith v Marrable (1843) 11 M & W 5
o Facts: S let a furnished house to M for 6 weeks. The house was infested with
bugs and M left after a week (paying one week’s rent). The court found that M
had been within his rights to repudiate the lease. There had been a clear breach
of the term implied into a lease of furnished residential accommodation that it
was reasonably fit for habitation.
o Principle: where residential premises are let furnished, there is an implied
condition that they are fit for habitation at the commencement of the tenancy
and the premises must not be infested with bugs.
• Collins v Hopkins [1923] 2 KB 617
o Facts: a house in which a person has recently been suffering from pulmonary
tuberculosis does not comply with such warranty, and the tenant is therefore
entitled to repudiate the contract of tenancy on the ground that the premises
are not reasonably safe for human occupation.
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o Principle: Upon the letting of a furnished house there is an implied warranty
in the nature of a condition that the demised premises shall be reasonably fit
for habitation at the date fixed for the commencement of the tenancy.
• Sarson v Roberts [1895] 2 QB 395
o Principle: on the letting of furnished lodgings there is no implied agreement
that the lodgings shall continue fit for habitation during the term.
o Facts: In March, 1894, the defendant let to the plaintiff certain furnished
apartments in a house at Bettws-y-Coed. Subsequently, and while the plaintiff
was occupying the apartments with his family, a grandchild of the defendant's
who was living in the house became ill with scarlet fever, and the plaintiff's
wife and child were infected and took the fever. The plaintiff was put to
expense for medical attendance and nursing and in other ways, and he claimed
to recover such expenses as damages for breach of an implied promise that the
apartments were fit for habitation.
o At the trial of the case the jury found, in answer to questions left to them that
the house was healthy at the time of the letting and entering on occupation;
that the plaintiff's wife and child contracted scarlet fever at the defendant's
house during occupation; that the defendant knew that his grandchild had
scarlet fever and concealed that fact from the plaintiff; and they assessed
damages at 31l. 19s. The learned commissioner subsequently gave judgment for
the plaintiff. The defendant appealed.
o Held: Appeal allowed.
• Cruse v Mount [1933] 1 Ch 278
o Principle: If the premises are let unfurnished then this implied standard does
not apply.
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ii.
Statutory provisions
•
The common law position has been statutorily modified in some territories:
•
Trinidad & Tobago - Letting of Houses (Implied Terms) Ord. Cap. 27 No. 8 s.3
o in any contract for letting any house for human habitation there shall,
notwithstanding any stipulation to the contrary, be implied a condition that
the house is, at the commencement of the tenancy, and an undertaking that
the house will be kept by the landlord during the tenancy, in repair and in all
respects reasonably fi t for human habitation’.
•
Farrudeen v Boucher (1959) LRBG 222
o Facts: By s. 44(1) of the Landlord and Tenant Ordinance, Cap. 185, there is
implied in every contract for letting any house for human habitation an
undertaking that “the house will be kept by the landlord during the tenancy in
repair and in all respects reasonably fit for human habitation”; and by subs. (2)
the landlord is given a right to “enter any premises to which (the) section
applies for the purpose of viewing the condition thereof.
o The respondent was the wife of a tenant of a house to which s. 44 applied.
While walking on the floor one of the floor boards suddenly gave way with the
result that she was injured. No notice of defect had been given to the appellant
landlord. The appellant appealed from an order of the magistrate awarding
damages to the respondent.
o Issue: whether it is a condition precedent to the liability of a landlord for
injuries sustained by an inmate of a house let by the landlord for human
habitation, the injuries resulting from a latent defect in the condition of the
house, that notice of the defect should be given the landlord, the landlord
having a right of access to inspect the state of repair of the house.
o Held: although the defect was latent and the landlord had a right of inspection,
he was not liable in the absence of notice of the defect.
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•
Luckie v Stephen (1957) LRBG 91
o Facts: The respondent tenant Stephen claimed from the appellant landlord
Luckie damages for the wrongful act of the appellant in causing the electric
current to be cut off from premises occupied by the respondent and rented by
him from the appellant. It was alleged by the respondent in his plaint that in
consequence of the said wrongful act by the appellant the respondent suffered
loss and convenience of electric current and light in the demised premises. The
magistrate found that the electric wire carrying the current became defective
through no fault of the respondent and that the respondent had only brought
the defective state of the wire to the appellant's notice. The magistrate awarded
the respondent damages holding that the appellant had committed a breach of
the implied condition in section 44 (3) of the Landlord and Tenant Ordinance,
Cap. 185. that is to say, the premises were not kept in all respect reasonably fit
for human habitation, that as a result the health of the respondent's wife was
injuriously affected and that the appellant had committed a breach of his
agreement of tenancy with the respondent.
o Held:
(i)
The claim being one in tort for loss of convenience it was not competent
for the magistrate to award damages on a finding of breach of contract
and the claim therefore was not enforceable.
(ii)
The provisions of section 44 (3) of the Landlord and Tenant Ordinance,
Cap. 185, entitle an inmate of the demised premises to an award of
damages only where the property or the person or the health of the
inmate is injuriously affected by reason of a breach by the landlord of
the condition or undertaking implied by the subsection and as no such
injury was proved no damages could be awarded. Further, that
subsection contemplates an award of damages to the inmate and not to
the tenant for injury to an inmate.
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•
N.B Hamblin v Samuel & Browne (1966) 11 WIR 48 and the factors laid down by
Wooding C.J. in determining whether premises are fit for human habitation.
o Facts: the owner of a house decided to convert the basement area into two
self-contained apartments. Officials of the Rent Assessment Board visited the
premises and found that the ventilation of the apartments was inadequate,
that the one-bedroom window in each apartment could not be opened at all,
and that the one sitting room window in each had generally to be kept closed
because of the prevailing dust. According to Wooding CJ, ‘the Board would
appear to have regarded the conditions to which the apartments were subject
as almost, if not wholly, subhuman’. In ascertaining the meaning of ‘fit for
human habitation’, the learned Chief Justice gave it ‘its natural meaning’,
which may tersely be said to be: ‘fit for human beings to live in.’
o Wooding CJ regarded s 4(1) of the Housing Act 1957 (UK) as a reasonable guide
as to whether premises are fit for human habitation. The sub-section
provided: In determining for any of the purposes of this Act whether a house
is unfit for human habitation, regard shall be had to its condition in respect
of the following matters, that is to say:
(a) repair;
(b) stability;
(c) freedom from damp;
(d) natural lighting;
(e) ventilation;
(f) water supply;
(g) drainage and sanitary conveniences;
(h) facilities for storage, preparation and cooking of food and for the disposal
of waste water,
and the house shall be deemed to be unfit for human habitation if and only if
it is so far defective in one or more of the said matters that it is not reasonably
suitable for occupation in that condition.
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•
Principle: whether premises are fit or unfit for human habitation is essentially a matter
of fact, bearing in mind the nature and degree of any incident of unfitness which may
be found to exist.
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5: Covenant to Renew the Lease (Option to Renew)
•
This is a landlord’s covenant where the landlord agrees that, upon the lessee giving to
him the prescribed notice of his intention to exercise his option to renew the lease,
provided there are no existing breaches, he will grant to the lessee a new term. The
effect of a covenant to renew the lease by the landlord in certain prescribed
circumstances amounts to the grant of an option to the tenant. The grant of such an
option constitutes an irrevocable offer by the landlord which he cannot unilaterally
withdraw.
•
Examples of the Option to Renew clause:
o “If the Tenants shall be desirous of renewing this tenancy of the demised premises
for a further period of ONE (1) YEAR to commence from and after the expiration of
the term hereby granted and shall at least two (2) calendar months before the
expiration of the tenancy hereby created signify such desire by a notice in writing to
be delivered to the Landlady AND if at the expiration of the said term there shall
not be any existing breach or antecedent breach of any of the agreements
stipulations or obligations herein contained and on the part of the Tenants to be
observed and performed, the Landlady shall at the cost of the Tenants grant to the
Tenant a new tenancy of the demised premises for a further term of YEAR (1) YEAR
at a rent to be THEN agreed upon to commence from and after the expiration of the
term hereby granted BUT SUBJECT in other respects to the same conditions,
stipulations and agreements as are herein contained except this present option
Clause for renewal.” OR
o If the Tenant wishes to take a further lease of the Premises from the end of the
[Contractual] Term, and at any time after the end of the (insert year as required)
year of the [Contractual] Term gives to the Landlord [not less than] (state period,
e.g. 6 months’) notice of that wish, then, provided the Tenant has paid the Lease
Rents [and [substantially performed and observed (or as required) is not materially
in breach of] the covenants contained in this Lease up to the end of the [Contractual]
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Term, the Landlord must [at the cost of the Tenant] grant to the Tenant a further
lease of the Premises for a term of (insert period) years commencing on and
including the day following the last day of the Contractual Term, on the same terms
and conditions as this Lease except as to the Initial Rent, the Review Dates and this
option for a further lease.
•
An option to renew a lease touches and concerns the land is therefore:
o binding on the lessor’s personal representatives;
o runs with both the lease and the reversion;
o capable of being assigned;
o binding on successors in title of the original landlord.
•
N.B. Where title is registered such options are only binding on purchasers of the
reversion if entered on the register or certificate of title.
•
Woodall v Clifton [1905] 2 Ch. 257
o A lease of land for ninety-nine years granted in 1867 contained a proviso that in case
the lessee, his heirs or assigns, should at any time during the term be desirous of
purchasing the fee simple of the land at the rate of £500 per acre, the lessor, his heirs
or assigns, on receipt of the purchase-money, would execute a conveyance of the
land in favour of the lessee, his heirs and assigns.
o In 1904 an action was brought by an assignee of the lease, who had given notice of
his desire to exercise the option, against assigns of the lessor to compel a conveyance
of the land accordingly: Held the option to purchase was invalid on the ground of
remoteness.
•
Tolhurst v Assoc. Portland Cement [1903] AC 414 @ 423
o The owner of land contracted with a company to supply them for 50 years with at
least 750 tons of chalk per week, and so much more as they might require for their
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manufacture of cement upon their land, the chalk to be delivered in convenient
daily quantities as required by the company by written notice given on the preceding
day. The company which had a small capital and was doing a comparatively small
business, went into voluntary liquidation and transferred all its business and
property, and purported to assign this contract to a second company, which had an
extensive business, carried on at various places, and a large capital:
o Held the contract was a subsisting one between the original parties to it, and had
not been put an end to by the liquidation of the original company or the assignment
to the second company, or by both those facts together.
•
Weg Motors Ltd v Hales [1966] 3 All ER 210
o Facts: By a mortgage, dated 8 July 1937, GRI Ltd as the registered proprietors with
an absolute title under the Land Registration Act, 1925, of property in London,
including certain land with the garages erected thereon, charged the property by
way of legal mortgage to an insurance company. Clause 15 of the mortgage provided
that the statutory powers of leasing should not be exercisable by the borrowers
without the written consent of the lenders except in the case of lettings for any
period up to twenty-one years. The charge was registered. By a lease, dated 26 July
1938, GRI Ltd demised the land with the garages thereon to the plaintiff company
for a term of twenty-one years from 25 December 1938, determinable by the lessee
at the end of seven or fourteen years, at a rent of £1,500 a year. A clause in the lease
referred to “making good [certain matters] at the expiration of the term or any
renewal thereof”. By an agreement (not under seal) made on the same date and
between the same parties (referred to therein as “the lessors” and “the lessees”), but
signed before the execution of the lease, it was stated that the expressions “lessors”
and “lessees” included, wherever appropriate, their respective successors in title, and
it was agreed that “In consideration of the lessees taking a lease of even date with
but executed after these presents from the lessors the lessees shall have the option
of taking a further lease of the premises demised by the … lease for a term of twenty-
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one years at the yearly rental of £1,500”. By cl 2 it was agreed that the option should
be exercisable by notice in writing given by the lessees to the lessors at any time
before 25 December 1959, and that, if and when it should be exercised, the lessors
should grant “a further lease” of the premises “for the said term (such term to
commence from the date of the exercise of the option) at the said rent”, and the
lessees should thereupon surrender the unexpired residue, if any, of the lease of 26
July 1938.
o Held: the execution of the option agreement and of the lease formed a single
transaction, since in view of the fact that the “taking of [the] lease of even date” was
the expressed consideration for the grant of the option, the option agreement was
in truth no more than an offer having no binding effect until the lease was executed,
and since the documents were contemporaneous and intimately related;
accordingly the right and obligation of the option agreement were properly
incidents of the demise, were for the renewal of the lease and, as such, were excepted
by long established authority from the scope of the rule against perpetuities.
•
West Country Cleaners v Saly [1966] 3 All ER 210
o By a fourteen-year lease expiring on 27 January 1965, the tenant covenanted to keep
and deliver up the inside of the demised premises in repair and ‘at least once in each
three years of the . . . term and . . . in the last year of the . . . term to paint with at
least two coats of good oil colour and paper and whitewash all such parts of the
inside of the premises as have usually been painted papered and whitewashed.’
o Clause 4(3) gave the tenant an option to renew the lease for a further seven years by
giving twelve months’ notice in writing before the expiry of the term ‘providing all
covenants herein contained have been duly observed and performed’. The tenant
kept the interior of the premises in fair decorative repair, but did not paint the
ceiling and did no painting in the last year of the term. The landlord, who lived next
door to the premises, frequently visited the premises and saw what decoration was
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done; she once commented unfavourably on the style of decoration, but never
complained of failure by the tenant to paint in accordance with covenants.
o On 18 September 1963, the tenant gave notice to exercise the option:
o Held the tenant was not entitled to a renewal of the lease under the option because
at the termination of the term, which on the true construction of this option was
the relevant date, the tenant was in breach of covenant in that the ceiling had not
been painted every three years and no painting had been done in the last year of the
term; and the triviality of the breaches did not prevent them from rendering the
option unenforceable;
o the landlord’s silence about these breaches could not constitute a waiver or estoppel.
•
Finch v Underwood (1876) 2 Ch.D. 310
o A lease was granted to two, with a proviso for re-entry in case the rent should be in
arrear for thirty days, or the tenants or either of them should become bankrupt, or
let, assign, or part with the premises, or any part thereof, without licence; or if the
tenants should not keep the covenants, which were joint and several covenants, one
of which was to keep the interior of the property in repair.
o The landlord covenanted that he would, at the expiration of the term, in case the
covenants on the tenants’ part should have been duly performed, grant to ‘the
tenants, their executors and administrators,’ a fresh lease, subject to the same
covenants, provided the tenants or either of them, their or either of their executors
or administrators, should, twenty days before the end of the term, give the landlord
notice of the desire to take such lease.
o One of the tenants became bankrupt, shortly before which he assigned his interest
in the lease to the other tenant. The landlord, with knowledge of this, received rent
to the end of the term. The continuing tenant, twenty-one days before the end of
the term, gave the landlord notice to grant the renewed lease to him.
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o At this time the interior of the property required repairs to the amount of at least
£13. The judge decided that the lease must be granted, the repairs required being
only trifling:
o Held: the tenant was not entitled to a renewed lease, for that the granting it was
subject to a condition precedent that the covenant of the lease should have been
kept, which condition had not been performed, as there was a want of repair which,
though not serious, constituted an existing breach of covenant when the new lease
was applied for;
o the agreement being to grant a lease to the two, who must enter into joint and
several covenants, and both being alive the landlord could not be called upon to
grant a lease to one only.
•
Bass Holdings Ltd v Morton Music [1987] 2 All ER 1001
o Facts: In 1982 premises comprising a tied public house and hotel were leased by the
freeholders (the landlords) to the tenants for a term of 15 years from 1 April 1982 at
a yearly rent of £15,000. The lease contained the usual tenant's covenants in
commercial lettings, being positive and negative in nature or both, and including
positive covenants to pay rent and water rates and a negative covenant not to apply
for planning permission without the landlords' consent. By cl 9 of the lease the
tenants were granted the option of acquiring a further 125-year lease of the premises
from 1 April 1982 on payment of a premium of £300,000 if notice to exercise the
option was given by 29 September 1985 and the tenants had 'paid the rent … and …
performed and observed the several stipulations on [the tenants'] part … to be
performed and observed up to the date' of the exercise of the option. In 1984 the
tenants committed breaches of the covenants to pay rent and water rates and not to
apply for planning permission without the landlords' consent. The landlords took
proceedings to forfeit the lease for those breaches but, by an order dated 1 April 1985,
the tenants were granted relief from forfeiture on condition that they paid the
arrears of rent and water rates. The tenants complied with that condition and
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subsequently, by a letter dated 19 September 1985, purported to exercise the option.
The landlords refused to accept the letter as an effective exercise of the option and
applied for a declaration that by reason of the past breaches of covenant the tenants
were precluded from exercising the option.
o The judge held that, although spent breaches of the positive covenants to pay rent
and water rates did not bar the tenants from exercising the option, once there had
been breach of a negative covenant, such as the covenant not to apply for planning
permission without the landlords' consent, the tenants were barred from exercising
the option even if the breach was spent at the date when the option was exercised.
The tenants appealed.
o Held – The renewal option contained in cl 9 of the lease was to be interpreted
according to the well-established principles relating to the interpretation of a
condition precedent to the exercise by a tenant of an option in a lease that at the
specified date he should have performed and observed all the covenants in the lease,
since although cl 9 contained some unusual features the condition precedent
contained therein was drafted in the well-established conventional form.
Accordingly, cl 9 did not require that the tenants should never have committed any
breaches whatsoever of any covenant prior to exercising the option but instead
merely required that there be no subsisting breaches at the date when the option
was exercised. It followed that the tenants were not prevented from exercising the
option by past breaches of covenant which had become spent prior to exercising the
option, and it was irrelevant whether the past breaches were of positive or negative
covenants. The option had therefore been validly exercised, and the appeal would
be allowed.
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5: Covenant to Grant an Option to Purchase the Reversion
• This is a landlord’s covenant where the landlord agrees that, upon the lessee giving to
him notice of his intention to purchase of the reversion the landlord will convey the
reversion to him. The covenant specifies the period and form of the notice. It usually,
but not always, contains an agreed purchase price. Some options to purchase the
reversion may contain a formula by which the purchase price may be calculated. The
covenant usually stipulates as well that no rent must be in arrears.
Example of this covenant:
OPTION TO PURCHASE
1. The lessor grants to the lessee (or his nominee) an option to purchase the property for
the price of $ on the standard terms and conditions.
2. This option is binding on the lessor, their executors, administrators and assigns.
3. This option benefits the lessee their executors, administrators and assigns or nominee.
or nominee.
4. This option may be exercised at any time before by notice in writing of the exercise
accompanied by a cheque for a 10% deposit and a duly executed contract for sale
providing for completion within 42 days together with a counterpart thereof. The lessee
shall cause the contract of the disclosure documentation prior to exercise of the option.
If a nominee exercises the option, then a notice of nomination signed by the lessee must
accompany the contract. Immediately following exercise of the option, the lessor shall
sign and return the counterpart contract.
5. On completion of the sale, any amount paid in consideration of the grant of this option
shall be credited towards and deducted from the balance of the purchase price payable
on completion.
6. On delivery of the notice of this option the parties become immediately bound as
vendor and purchaser under the contract for the sale of land in accommodation with
the terms contained in the contract.
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•
Broadway Import and Export Ltd v Levy JM 1996 SC 13
o Langrin J in the Jamaican Supreme Court described the nature thus:
o An option to purchase is the right to purchase a particular estate in land for a
particular sum within a particular period. The holder of the option can call for the
sale of the land to him for the agreed price at any time within the agreed period.
Thus, with an option to purchase, the option holder is the prime mover. The option
agreement constitutes an irrevocable offer to sell and once the plaintiff has accepted
that offer by exercising the option, a contract has come into being.
•
Caribbean Asbestos Products Ltd v Lopez (1974) 21 WIR 462
o Luckhoo P: An option, when granted for value, confers a right or privilege in the
optionee to call for the sale to him of the land in accordance with the conditions
specified for the exercise of the option, and the lessor undertakes that he will not
within the time, if any, specified in the option clause, which is indeed a separate
contract, deal with the land in any way inconsistent with the right of the optionee
to purchase the land, together with a binding agreement not to revoke the offer
during the time, if any, specified in the option. If the offer is accepted within the
time specified, a contract of sale is made ... If the lessor, in breach of his agreement,
purports to revoke his offer; his revocation is ineffectual to prevent the formation of
a contract by the acceptance of the offer within the specified time.
• The existence of such an option is collateral to the relationship of landlord and tenant.
o Woodfall v Clifton, Supra @ 279 per Romer L.J.
▪ Principle: The option does not constitute a contract, but still however creates a
property right.
▪ Facts: A lease of land for ninety-nine years granted in 1867 contained a proviso
that in case the lessee, his heirs or assigns, should at any time during the term
be desirous of purchasing the fee simple of the land at the rate of 500l per acre,
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the lessor, his heirs or assigns, on receipt of the purchase-money, would execute
a conveyance of the land in favour of the lessee, his heirs and assigns.
▪ In 1904 an action was brought by an assignee of the lease, who had given notice
of his desire to exercise the option, against assigns of the lessor to compel a
conveyance of the land.
▪ Held: by the Court of Appeal, that the proviso or covenant did not come within
the statute 32 Hen. 8, c. 34, so as to make the liability to perform it run with the
reversion, and that consequently the action could not be maintained against the
defendants.
▪
Romer L.J:
▪
Issue: The question in the present case is whether the statute was intended to
cover, or can be construed as covering, such a covenant or proviso as we have
now to consider, so as to make the liability to perform it run with the reversion.
▪
Conclusion: We have come to the conclusion that that question must be
answered in the negative. The covenant is aimed at creating, at a future time, the
position of vendor and purchaser of the reversion between the owner and the
tenant for the time being. It is in reality not a covenant concerning the tenancy
or its terms. Properly regarded, it cannot, in our opinion, be said to directly affect
or concern the land, regarded as the subject-matter of the lease, any more than
a covenant with the tenant for the sale of the reversion to a stranger to the lease
could be said to do so. It is not a provision for the continuance of the term, like
a covenant to renew, which has been held to run with the reversion, though the
fact that a covenant to renew should be held to run with the land has by many
been considered as an anomaly, which it is too late now to question, though it is
difficult to justify. An option to purchase is not a provision for the shortening of
the term of the lease, like a notice to determine or a power of re-entry, though
the result of the option, if exercised, would or might be to destroy the tenancy.
It is, to our minds, concerned with something wholly outside the relation of
landlord and tenant with which the statute of Henry VIII was dealing.
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• The option does not constitute a contract, but still however creates a property right.
o Re Button’s Lease [1963] 3 All ER 708
▪
Facts: A lease dated 10 August 1955, in which the lessee, a company, was
described as the tenant but there was no express definition of the term tenant
extending that description to include assigns, contained a clause conferring on
the tenant an option to purchase the freehold reversion. On 28 February 1957,
the company assigned the lease to the plaintiff; this did not contain any specific
assignment of the benefit of the option. On 17 March 1960, the company
specifically assigned the benefit of the option to the plaintiff.
▪
Issue: Whether the benefit of the option was now vested in and exercisable by
the plaintiff.
▪
Held: There was nothing in the context to negative the prima facie rule that the
option was assignable, and accordingly the benefit of the option was vested in
the plaintiff and exercisable by him.
▪
Per Curiam: where in a lease conferring an option to purchase on the tenant
there is an express description of the tenant, as including his executors,
administrators and assigns, the description may limit the possible assignees of
the option to persons who are assignees of the term, but in the absence of that
description the option is assignable to anyone.
▪
An option in a lease for the lessee to purchase the reversion creates in favour of
the grantee a chose in action or equitable interest in the land which is assignable,
except in a case where assignability is prohibited by some rule of law, such as the
rule against perpetuities, or the option is personal to the grantee; but the option
does not of itself constitute a contract.
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• If not exercised however, it does not remain a term in a yearly tenancy where the tenant
holds over after the expiration of the original lease.
• Re Leeds and Bately Breweries and Bradbury’s Lease [1920] 2 Ch 548
o Principle: An option to purchase the reversion contained in a lease is wholly outside
the relation of landlord and tenant, and, therefore, is not one of the terms of the
lease which is incorporated in a tenancy from year to year created by the tenant
holding over and paying rent after the expiry of the lease, and so is no longer
exercisable by a tenant who is so holding over.
• The option attaches to and forms part of the lease so that its benefit passes on to an
assignee of the tenant’s interest.
o Griffith v Pelton [1958] 1 Ch. 205
▪ Facts: A lease, demising land for a term of twenty-five years, included a proviso
that ‘if the lessee shall ... give to the lessor ... six months’ notice in writing of the
desire of the lessee to purchase the fee simple of the demised premises ... then
the lessor shall ... upon payment of the [purchase price with interest until
completion] ... assure the said premises unto the lessee for an estate in fee
simple.’
▪ It was further provided that the option should not be exercised during the life of
the lessor but within one year after the lessor’s death. By an assignment dated 3
August 1948, the lessee (having first obtained a licence so to do from the lessor,
as required by the lease) assigned to the assignee ‘all that the property comprised
in and demised by the lease.’ This assignment contained no reference to the
option.
▪ On 2 March 1956, the lessor died. By a deed dated 22 March 1956, the lessee
assigned to the assignee the benefit, if and so far, as it was not already vested in
the assignee, of the option contained in the lease. On 22 March 1956, the assignee
gave notice in writing of this assignment to the executrix of the deceased lessor,
and also gave the executrix notice in writing exercising the option. In the lease
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the parties thereto were respectively described as ‘the lessor’, which expression
shall include the estate owner or estate owners for the time being of the reversion
of the premises hereby demised expectant on the term hereby granted, where
the context so admits’, and ‘‘the lessee’ which expression shall include her
executors, administrators and assigns where the context so admits’
▪ On the question whether the benefit of the option was effectually vested in the
plaintiff, either (a) by the assignment of the lease dated August 3, 1948, or
alternatively (b) by the deed of March 22, 1956: -
▪ Held the benefit of the option had been effectively vested in the assignee for the
following reasons –
1. the lessee was entitled to assign the benefit of the option to an assignee of
the lease, who thus would become entitled to the option and to exercise it
against the executrix of the lessor after his death;
2. the assignment of 3 August 1948, transferred the benefit of the option to the
assignee, since, on the true construction of the proviso, including the
definition to be read into it of the term lessee as including the lessee’s assigns,
a mere assignment of the term operated as an assignment of the benefit of
the option;
3. if, however, the assignment of 3 August 1948, did not vest the benefit of the
option in the assignee, that benefit remained vested thereafter in the lessee
and was effectively assigned to the assignee by the deed of 22 March 1956.
▪ N.B. This decision makes it clear that an option to purchase operates to create
property which is capable of assignment. However, the benefit only passes to the
lessee’s assignees where the circumstances suggest that they should.
▪ N.B. The burden of the option only passes to the Landlord’s personal
representative or if the person getting the reversion is a purchaser with notice of
the option.
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TENANT’S COVENANTS
1. Covenant to Pay Rent
2. Covenant with Respect to User
3. Covenant not to Commit Waste
4. To Keep Premises Insured
5. To Pay Rates and Taxes
6. Covenant with Respect to Alterations and Improvements
7. Covenant to Repair
8. Covenant Against Assignment or Sub-letting
1: Covenant to Pay Rent
The tenant covenants or agrees that he will pay to the landlord or his agent, a fixed sum,
usually in money, in exchange for his possession and occupation of the demised premises.
a) Nature
•
Rent is the quantum of money or money’s worth which is payable to the landlord
by the tenant as compensation for the tenant’s use and occupation and exclusive
possession of the demised premises. It forms part of the contract.
•
Montague v Browning per Denning L.J. @ p.604 [1954] 2 All ER 601
•
The rent must be fixed, certain or ascertainable.
•
“Rent is usually quantified in money and paid in money, but it is not necessary in
law that it always should be so…. It seems to me that, even under the Rent
Restrictions Acts, in cases when rent is payable, not in money, but in kind, as in
goods or services, then, if the parties have by agreement quantified the value in
terms of money, the sum so quantified is the rent of the house within the meaning
of the Rent Restrictions Acts, and, if it exceeds two-thirds of the ratable value, the
house is within the Acts.”
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•
Examples of payment which are not rent are:
o premiums payable in consideration of the grant of a licence where there is no
right of exclusive possession.
o payment for grant of an easement or other incorporeal hereditament.
o other payments reserved by the lease in ADDITION to the rent
b) Reservation
•
May be express or implied from a covenant by the tenant to pay rent. The covenant
to pay rent is usually introduced by the words “yielding and paying” and the details
of payment of the rent are usually included in the reddendum.
•
HOWEVER, no particular form of words is required so long as the intention of the
parties to reserve a specified rent is clear. Once this intention is evinced it will
amount to an implied agreement on the part of the tenant to pay rent.
•
e.g., “The tenant for himself and his assigns covenants with the landlord to pay the
reserved rents on the days and in the manner aforesaid without any deductions
whatsoever.” OR
•
“The tenant must pay the landlord the Rent [without any deductions or set-off] by
equal monthly (or as required) payments in advance on the first day of each and
every month throughout the term of this agreement, commencing on the 1st day of
December, 2015”.
c) Time and Mode of Payment of Rent
•
In the absence of an express term to the contrary, rent is payable in arrears at the
end of a period in a periodic tenancy.
•
Collett v Curling (1847) 10 QB 785
o The plaintiff agreed to lease premises to the defendant on agreement from the
25th March 1844, for twelve months, and to continue in the lessor's interest in the
premises, until determined by a six months' notice from the tenant, expiring at
any quarter of a year, at the rent of 120l. a year. The tenancy was still subsisting,
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and the defendant in possession of the rooms; but he contended that the
agreement made the rent payable not quarterly but yearly.
o Lord Denman CJ: In this case the question was whether the rent was payable
quarterly or yearly. The agreement for the rent of 120l. a year would make it
payable yearly, unless the stipulation for determining the tenancy by a six
months' notice, expiring at any quarter of a year, raises a presumption that it
should be payable quarterly. The plaintiff’s claim would fail and the rent would
be paid yearly because there has been no intention or no authority to suggest that
it must be paid quarterly.
•
Specific terms relating to the time for the payment of rent are to be found in the
reddendum.
•
Thus, a yearly rent may be payable monthly or quarterly and may also be made
payable in advance.
d) To Whom Rent is Payable
•
Rent must be paid to the lessor or to someone who is expressly or impliedly
authorised by the lessor to receive it.
•
Rent review clauses are common in long leases (leases usually for a period of over
21 years) where market fluctuates and as such the rent payable at the time of the
lease must be adjusted as time goes by to be in range of the fair market value.
e) Estoppel
•
Payment of rent is recognition of the title of the person to whom it is paid and
operates as an estoppel against the tenant if he disputes the title.
•
Cooke v. Rickman [1911] 2 KB 1125
o The plaintiff sued the defendant in the King's Bench Division for rent alleged to
be due under an agreement, and judgment was signed under Order XIV. for a part
of the sum claimed which the defendant admitted that she owed. In a subsequent
action in the county court between the same parties for further rent under the
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same agreement, the defendant raised the defence that there was no
consideration for the agreement:
o Held, that the defendant having admitted in the first action that rent was due
from her under the agreement was estopped from raising in the second action the
defence of no consideration for the agreement and. The payment of rent denoted
title by the tenant to the property and the landlord was estopped from claiming
otherwise.
•
Bain v Econo Car Rental Ltd TT 2010 HC 211 @ pp 31-41
•
Where a tenant has paid rent to a person not entitled to receive it, he is still liable
to the actual landlord for the rent.
•
The covenant to pay rent runs with the land whether the covenant is express or
implied. The liability arising from the covenant continues until determination of
the tenancy.
•
The rent reserved by the covenant must be certain or ascertainable by calculation
or reference to specific and certain events.
•
Treseden-Griffith Co-operative Ins. Soc. Ltd [1956] 2 All ER 3
o Lessors demised two shops to tenants on a lease for thirty-four years from 24 June
1930, at a rent rising from £1,600 to £1,900 per annum. Having subsequently
bought the freehold, on 30 December 1938, they demised the shops to the same
tenants from 24 June 1930, for ninety-nine years “paying therefore yearly during
the said term either in gold sterling or Bank of England notes to the equivalent
value in gold sterling the rent of £1,900 to be paid without any deduction except
for landlord’s property tax land tax and tithe redemption annuity by equal
quarterly payments … ” repeating a similar clause in the earlier lease apart from
the figure of rent. There was a covenant “to pay the reserved rent at the time and
in manner aforesaid”. The lease having been assigned, the lessors claimed from
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the lessees (i.e., the assignees) payment of rent on the basis of the value of 475
gold sovereigns a quarter at the date when the payment became due, either the
value of their gold content as bullion (e.g., £5,610 6s 1d, on 29 September 1955) or
the value of the sovereigns as vendible coins (e.g., £6,412 10s at that date) the value
in either case fluctuating with the market.
o Held – (Harman J dissenting): On a true construction of the lease the yearly rent
payable was a fixed rent of £1,900 and the reddendum was intended to determine
the manner in which the rent was paid but not to fix its amount, because (i)(per
Denning LJ) the phrase “gold sterling” in the reddendum denoted gold coins
regarded as currency, worth as such their nominal value, and did not refer to gold
coins regarded as a commodity or as bullion, and (ii)(per Morris LJ) the word
“value” in the reddendum denoted nominal value, with the consequence that for
the purpose of the reddendum gold sterling might be satisfied at 20s or a £1 bank
note for the gold pound.
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2: Covenant with Respect to User
•
The tenant covenants to use the demised premises in a tenant like manner. This
covenant exists at common law and may be express or implied.
•
Per Scrutton L.J in Marsden v Edward Heyes Ltd [1927] 2 KB 1 @ p.7
o “To use premises in a tenant like manner means at any rate that a tenant will not
make such structural alterations in the premises as will change their character. If a
dwelling house is let and something which is not a dwelling house is delivered up,
the contract to deliver up in a tenant like condition is broken.
•
See also: Warren v Keen [1954] 1 QB 15 particularly the judgement of Denning L.J. at
pg. 20.
o A weekly tenant is not under a general covenant to put and keep the premises in
repair. His only duty is to use the premises in a husband like or tenant like manner.
If the house falls into disrepair through fair wear and tear or lapse of time, or for any
reason not caused by him, he is not liable to repair it. The landlord-plaintiff claimed
that there was an implied term in the tenancy that the tenant would, “use the
premises in a tenant-like manner and keep the premises wind and water-tight and
would effect fair and tenantable repairs.” He argued that the tenant was in breach
of the implied term. The particulars of the breach complained of contained damp
plaster walls, walls stained below the window opening, external wall cracked and in
broken parts, sills not weather-proof, joints and paintwork decayed, and a leak in
the hot water boiler. The tenant denied any liability for the repairs. The claim of the
landlord-plaintiff was to recover from the tenant £23 5s, which he had spent in
pursuance of borough council notice to remedy these defects. This was allowed by
the County Judge whose decision was reversed by the Court of Appeal on the
grounds that there was no such implied duty on the tenant to repair. The implied
obligation of the tenant was to use the premises in a tenant-like manner.
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o It was held that a weekly tenant is not under a general covenant to put and keep the
premises in repair. His only duty is to use the premises in a husband like or tenant
like manner. If the house falls into disrepair through fair wear and tear or lapse of
time, or for any reason not caused by him, he is not liable to repair it.
o Lord Denning: “Apart from express contract, a tenant owes no duty to the landlord
to keep the premises in repair. The only duty of the tenant is to use the premises in
a husband like, or what is the same thing, a tenant like manner. But what does "to
use the premises in a tenant like manner" mean? It can, I think, best be shown by
some illustrations. The tenant must take proper care of the place. He must, if he is
going away for the winter, turn off the water and empty the boiler. He must clean
the chimneys, when necessary, and also the windows. He must mend the electric
light when it fuses. He must unstop the sink when it is blocked by his waste. In short,
he must do the little jobs about the place which a reasonable tenant would do. In
addition, he must, of course, not damage the house, willfully or negligently; and he
must see that his family and guests do not damage it: and if they do, he must repair
it. But apart from such things, if the house falls into disrepair through fair wear and
tear or lapse of time, or for any reason not caused by him, then the tenant is not
liable to repair it.”
•
A tenant has the right to use the demised premises for any purpose unless restrained by
a) statute – e.g., Town and Country Planning restrictions; or
b) a restrictive covenant
•
Provided the purpose for which the premises are used is not unlawful, immoral, does
not create a nuisance and does not amount to waste. Restrictive covenants may be:
a) Negative in form and substance, e.g., not to carry on trade.
b) Positive in form but negative in substance, e.g., to use the premises as a private
dwelling house only.
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•
Parker v Whyte (1863) 1 H & M 167
o An underlease of a shop contained express permission for the under
lessee to carry on sales by auction there, but in the original lease there
was a covenant of which the under lessee had no actual notice which did
not permit such sales to be carried out there without licence from the
landlord. An injunction was granted at the instance of the landlord, to
prevent such sales from being carried on.
o An under lessee cannot plead no notice if he abstains from calling for
information to which he is entitled. Thus, he was in breach of the
covenant.
•
Mander v Falcke [1891] 2 Ch. 554
o The lessee had covenanted not to use the demised premises for any
purpose which would cause annoyance or inconvenience to adjoining
property owned by the lessor. The lessee sublet the premises and the
sublease eventually became vested in X who did not occupy the premises
himself, but gave an occupational licence to his father.
While in
occupation, X’s father used the premises ostensibly as an oyster bar and
refreshment room, but in reality, as a notorious brothel ‘to the great
annoyance of the neighbourhood’.
o Held, by the Court of Appeal, that the evidence showed X’s father to be
in joint or sole occupation of the house and to be managing the business
in it with notice of the covenants, and that even if he was nothing more
than a mere occupier, he was liable to an injunction to restrain him from
using the house in a way forbidden by the restrictive covenants.
o Lindley LJ: “I have not the slightest doubt that the father is substantially
the person interested in the business, and that the son is put forward as
a screen. I have no doubt that the father is managing the house; and that
he does so with full notice of the terms on which the son holds the
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property. I feel certain that he has a pecuniary interest in the concern. I
do not proceed on the hypothesis that he is cestui que trust of the
underlease, for that is uncertain. I treat him simply as an occupier
managing the business. He may be neither an assignee nor purchaser,
but he is in occupation, and that is enough to affect him, he having notice
of the covenants in the lease.”
•
Levermore v Jobey [1956] 2 All ER 362
o By a lease there was demised to a tenant property described as “all that
building or tenement shop and premises” and the tenant covenanted
that he would “not use or permit to be used the demised premises or any
part thereof for any illegal or immoral purpose but will use and occupy
the demised premises and permit them to be used and occupied as and
for the trades or business of a newsvendor stationer bookseller toy
merchant and tobacconist only”. The premises comprised a building on
three floors which were mainly comprised of rooms for living
accommodations. On the ground floor was a shop, with a living room,
dining room and a kitchen behind. On the first floor was a sitting room
and a bedroom, and between the ground and first floors, off a halflanding, there were a bedroom, bathroom and a water closet. On the
second floor there were two bedrooms. There was a separate door from
the street to the upper floors.
o It was held that even though the premises were let for business purposes,
there was nothing in the contract which expressly or impliedly prevented
it from also being used as a dwelling house. The court must look at the
specific provision and ascertain whether or not use of the premises as a
dwelling house is prohibited or look at the conduct of the parties if the
covenant is not expressed. In the present case, there was nothing to
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suggest that the premises could not also be used as a dwelling house and
so there was no breach of the said covenant.
o Jenkins L.J: – “It is un-grammatically expressed, since the words
“occupied” and “for the trades or business” are separated by the words
“as and” which have no grammatical connection with what follows, but
it does purport to impose an obligation on the tenant to use and occupy
the demised premises and permit them to be used and occupied for the
specified trades or business only. For the landlord it is urged that the
effect of it is to impose on the tenant a positive obligation to use and
occupy every part of the demised premises and permit every part of the
demised premises to be used and occupied for the trade or business
specified and for no other purpose.
So that the lease on its true
construction is a lease of the premises under which the tenant is under
an obligation to carry on the trade or business of a newsvendor, stationer
and bookseller, toy merchant and tobacconist on the premises, and
further, is under an obligation not to carry on any other trade or business
on the premises, but the tenant is under no prohibition against living on
the premises. If that construction is right, then one has the position that
premises adapted for use as a shop with living accommodation over are
let to a tenant with a provision to the effect that he is to carry on a
specified trade or business on the premises but no other trade or
business. That means, in my view, that so far as the terms of the lease
are concerned the tenant is allowed without breach of covenant to live
on the premises, and it would seem to me that the effect of that is that
the premises were let as a dwelling-house notwithstanding that they
were to be used in part for business purposes.”
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a) Construction of the Covenant
•
Absolute Covenant:
o “The tenant for himself and his assigns covenants with the landlord not to use the
demised premises otherwise as a private dwelling house.”
o “The tenant for himself and his assigns covenants with the landlord as follows:
(a)Not to use the demised premises otherwise than as a private dwelling house.
(b)Not during the tenancy to underlet the said premises.
o “The tenant for himself and his assigns covenants with the landlord not to use or
permit or suffer the demised premises or any part thereof to be used for any illegal
or immoral purposes AND to use the same ONLY for the purposes of a residence.
•
N.B. The two covenants must be construed together as clause (a) prevents
subletting. The result is that a part cannot be sublet even though the subtenant is
using ad is bound to use the part as a private dwelling house.
•
Dobbs v Linford [1953] 1 QB 48
o A tenancy agreement made in 1936 of a dwelling-house within the Rent
Restriction Acts contained a covenant by the tenant "not to use the said premises
for any purpose other than as a private dwelling-house and not to sublet or part
with the possession of the premises (except as a furnished house) without the
consent in writing of the landlord such consent not to be unreasonably withheld
in the case of a respectable and responsible person." Unknown to the landlord the
tenant had in 1943 sublet the top floor to the defendant as a self-contained flat.
The tenant having died, in these proceedings the landlord sought to recover
possession against the sub-tenant. The sub-tenant claimed that the premises had
been lawfully sublet to her and that she had become the tenant of the landlord
by virtue of section 15 (3) of the Rent and Mortgage Interest (Restrictions) Act,
1920. The county court judge made an order for possession:
o Held, that the subletting of part of the demised premises was a breach of the
covenant not to use the premises for any purpose other than "as a private
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dwelling-house." The covenant as to user was inconsistent with the reservation of
any right to the tenant to sublet part of the premises. The subletting was in breach
of covenant and the landlord was entitled to possession. “The county court judge
held, as a matter of construction, that the sub-lease did constitute a breach of
covenant. He treated it as a question of construction of the lease, and in my
judgment, he was right in so treating it. He held that the covenant not to use the
premises for any other purpose than as a private dwelling-house was an obligation
on the tenant to use the premises for that purpose and for that purpose only, and
that it could not be said that she was complying with that obligation if she were
using part of the dwelling-house as a private residence for herself, and was
subletting another part to somebody else, even if that other person was using it,
and was bound to use it, as a private residence.” It seems to me, then, that one
has to take this covenant as one finds it, and one finds that it is a covenant to use
the premises for no other purpose than that of a private dwelling-house, and one
finds, and it is not in dispute, that it has been used by the tenant, partly as a
dwelling-house for her sub-tenant. That appears to me to be a plain breach of
covenant, which is not rescued from being a breach of covenant by the conception
to which I have referred, that she impliedly had the right to sublet that part of it.
•
Downie v Turner [1951] 1 All ER 416
o Principle: Where a lease contains covenants against (a) underletting the demised
premises or any part thereof without the previous consent in writing of the
landlord, (b) user of the demised premises otherwise than as a private dwellinghouse, and there has been an underletting without consent - contrary to the first
covenant - of part of the demised premises for residential purposes, it cannot be
alleged that, although the breach of the first covenant has been waived,
nevertheless there has been a breach of the second covenant which may be
continuous and thus not waived - since both the underletting and the alleged user
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of the house otherwise than as a private dwelling-house arose from the subtenancy.
o The test whether a breach of covenant is or is not continuous does not depend
solely upon whether it remains in the tenant's power to discontinue it, for an
important element in the matter is the landlord's knowledge - actual or to be
presumed - at the time of accepting rent.
o By an agreement in writing, dated 9 November 1940, the landlord agreed to let a
dwelling-house to the tenant for one year and thereafter, subject to notice as
therein provided, at a weekly rent of 35s. The agreement provided inter alia that
the tenant “will not during such tenancy underlet the said premises or any part
thereof without the previous consent in writing of the landlord: such consent
shall not be unreasonably withheld to a good tenant … and the tenant agrees that
he will not use the said premises for any other purpose than as a private dwellinghouse …”
o In February, 1946, without obtaining the landlord’s consent, the tenant sub-let
part of the premises as living accommodation to the sub-tenant and his wife. On
21 October 1949, the landlord served a notice to quit on the tenant, and on 22
November 1949, the tenant served a notice to quit on the sub-tenant. On 4 April
1950, the landlord served on the tenant a forfeiture notice under the Law of
Property Act, 1925, s 146(1). After September, 1949, the landlord continued
accepting rent from the tenant until 13 February 1950, with knowledge of the subletting. It was conceded that the landlord’s acceptance of rent after September,
1949, operated as a waiver in respect of the breach of the covenant against
underletting, but it was argued that the tenant was in breach of his covenant to
use the premises only as a private dwelling-house, and that that breach was
continuous and had not, therefore, been waived.
o Held – Assuming that the unlawful sub-letting was a breach of the covenant as to
user, the acceptance by the landlord of the rent after he had knowledge of the
sub-letting constituted a waiver not only of the breach of the covenant against
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underletting, but also of the breach of the covenant with regard to user. The case
now before us proceeded in the county court on the basis that the sub-letting and
the occupation by the sub-tenant was a breach of the covenant not to use the
premises for a purpose other than that of a private dwelling-house, and that was
the basis on which the learned judge proceeded. It is plain that, if what happened
amounted to a breach of the covenant not to use the premises for a purpose other
than that of a private dwelling-house, that breach arose from the sub-tenancy to
the sub-tenant and his occupation under the sub-tenancy. If a breach of that
covenant was to be relied on, it would not be enough simply to allege that the
sub-tenant and his wife were in the house. One does not cease to use one’s house
as a private dwelling-house because one has a married couple in it. If there was
a breach, it must be because the sub-tenant under his sublease was given
exclusive possession of a part of the house. If, as is conceded, the sub-letting was
done once for all, prima facie the breach of the covenant in regard to user is also
something which happened once and for all. In answer to that, counsel for the
landlord submits that the continued occupation by the sub-tenant is an essential
ingredient in the breach of the covenant in regard to user, whereas there would
be a breach of the sub-letting covenant even if he did not occupy. I think that
that is too fine a distinction on which to base a decision that the breach, if any, of
the second covenant, is continuous rather than something done once and for all.
Both the sub-letting and the alleged user of the house otherwise than as a private
dwelling-house arose, in my opinion, from the sub-tenancy, and it is impossible,
I think, in law to distinguish for this purpose and say that the one was done once
for all and the other was a continuing breach.
o I have considerable doubt whether on the construction of this lease a sub-tenancy
of part of the house to be used as a dwelling-house by the sub-tenant is a breach
of the covenant whereby the tenant agrees that he will not use the said premises
for any other purpose than as a private dwelling-house. We were referred to cases
where, subject to similar covenants, a lessee had let out a house in tenements. It
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seems to me plain that in so letting the lessee is not using the house as a dwellinghouse, but is conducting the business of letting out flats or tenements.
o Of course, if a lessee sub-lets for some purpose other than use as a private
dwelling-house, both covenants are broken, but where he sub-lets for the purpose
of use as a private dwelling-house it seems to me difficult to say that that is a
breach of the first covenant, which, however, provides for consent being given
which will make it not a breach and also that it is a breach of the second covenant
which has no such provision for consent. I, therefore, am inclined to think that
the sub-letting of part of the house for use as a dwelling-house falls within the
clause with regard to sub-letting, and is taken out, even if it might otherwise have
been within it, from the general covenant with regard to the use of the premises
for purposes other than a private dwelling-house. On the basis of the concession
made by counsel for the landlord, if that is right, it would make it impossible for
him to contend that his client could succeed. For these reasons I think this appeal
must be dismissed.
•
Qualified Covenant
o The Tenant for himself and his assigns covenants with the landlord as follows: a)
Not to use the demised premises otherwise than as a private dwelling house. b)
Not to underlet the said premises or any part thereof without the previous
consent in writing of the Landlord; such consent not to be unreasonably withheld
to a good tenant
o N.B. Clause (1)(b) qualifies clause (1)(a) and there may be a right to sublet with
consent: Downie v Turner.
b) Breach of the Covenant
•
A breach of this covenant is a question of fact to be determined on the
circumstances of each case.
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•
The type of covenant which is breached is also important in determining whether
there is a breach:
o Absolute Covenant: The lessee may only change the user of the premises if the
Landlord is prepared to agree to vary the lease or waive the breach for his benefit.
Otherwise, any change in the user is a breach of the covenant.
o Qualified: The lessee may alter the user of the premises with the landlord’s
consent. The landlord however can refuse to give consent on any ground whether
reasonable or not.
o Fully Qualified: The Lessee may alter the user of the premises with the landlord’s
consent which must not be unreasonably withheld.
•
German v Chapman (1877) 7 Ch. D. 271
o The user of the premises for trade or business (school) was a breach of the
covenant to use as a private dwelling house only. This case shows that even a
partial or minor use as a business will amount to a breach when it is stipulated
that it ought to be used as a dwelling house.
•
Patman v Harland (1881) 17 Ch D 353
o The erection of a stadium was held to be a breach against use for business and as
a private dwelling house only.
•
Thorn v Madden [1925] Ch. 847
o Receiving lodgers and paying guests, as a regular practice, was held to be a breach
of the covenant for use as a private dwelling house only and also to be a breach
against use for the purpose for trade and business.
•
Segal Securities v Thoseby [1963] 1 All ER 500
o X was the tenant of a maisonette under a lease reserving a rent of GBP 300 a year
payable quarterly in advance and containing a tenant's covenant "to use the
demised premises for the purpose of a private residence in the occupation of one
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household only." She had a friend, Y, to stay permanently and they shared the
expenses and she also advertised and obtained a boarder, Z, who did not share
meals or live as part of the family. The landlord served a notice requiring the
breach of covenant to be remedied within 28 days. During that time, he
demanded rent "without prejudice to the service of the notice" and X sent a
cheque which was returned to her. The landlord brought an action for forfeiture
of the lease.
o Held – the defendant was in breach of the covenant to use the demised premises
only as a private residence during the period while Z was in residence there, for
she was a paying guest and there was the basis of X letting to her. The defendant
would not have been in breach, in the circumstances, by reason only of Y’s
residence, as she was there on a basis of a sharing arrangement as a friend; and
the defendant’s breach was a continuing breach subsisting for many months
immediately preceding the commencement of the action.
o A demand "without prejudice" for rent payable in advance can operate as a waiver
of a breach of covenant in just the same way as an acceptance of rent "without
prejudice."
o Per Sachs J.: I now turn to the important and decisive question as to the
circumstances in which a demand for or acceptance of rent payable in advance
constitutes a waiver of breaches during the period covered by the rent demanded.
Clearly it cannot be a waiver of future breaches of which the landlord has no
advance knowledge; Ellis v Rowbotham, which relates to a default in payment of
rent in advance seems to illustrate this point, despite being a case concerned with
the Apportionment Act, 1870. Equally clearly, an acceptance of rent in advance
does waive a non-continuing breach in the past: such a waiver applies both to the
past and to the period covered by the rent. As regards continuing breaches, it
seems to me that in the absence of express agreement, the acceptance of rent in
advance can, at highest, only waive those breaches that are at the time of demand
known to be continuing, and to waive them for such period as it is definitely
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known that they will continue. When it is a question of estimating the chances
whether the tenant's breach will continue, the position is, in my view, different,
irrespective of whether those chances are high or low. The object of a covenant
by which rent has to be paid in advance is to obtain a certain security for that
payment: Ellis v Rowbotham points to the nature and effect of that covenant. A
landlord cannot, to my mind, lightly be deprived of the benefit of such rights: he
cannot be put in the position of having to wait until the end of the period covered
by the rent before demanding or accepting it, merely because there are chances
that the tenant may so break of continue in breach of covenant as to render
himself liable to forfeiture.
o The mere taking in of a single paying guest who shares the family life so far as
practicable is not, save in exceptional circumstances, a breach of a covenant to
use a house as a private residence only. It is a question of fact and degree whether
the taking in of paying guests is of an order that, having regard to all the
circumstances, constitutes a breach of the covenant in question.
•
Dobbs v Linford [1953] 1 QB 48
•
Downie v Turner [1951] 1 All ER 416
c) Remedies for Breach
•
Damages: normally this will be the only remedy unless there is a proviso for reentry and forfeiture in the lease.
•
Injunctive Relief;
•
Forfeiture, where provided for by the lease.
o Waiver of Forfeiture: Where a landlord (a) knows about a breach of a covenant
which makes the lease liable for forfeiture, and b) does some unequivocal act
recognising the continued existence of the lease, he is said to waive the forfeiture
and he loses the right to terminate the lease.
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o A merely passive attitude on the part of the landlord does not amount to a waiver,
nor is there a waiver where the landlord refrains from taking action because he
believes he will not be able to prove a suspected breach of the covenant.
o On the other hand, it is well established that there is a waiver if a landlord, with
knowledge of the breach, demands, sues, accepts rent falling to be due after the
breach, notwithstanding that his acceptance is stated to be without prejudice or
that an agent of the landlord accepted it by mistake.
o A waiver of a breach of the covenant extends only to the particular breach in
question. It does not extend to future breaches.
o Where there is a continuing breach, a demand for or acceptance of rent waives
the forfeiture only up until the date of demand or acceptance, it does not preclude
the landlord from forfeiting if the breach continues.
d) Discharge and Modification of Restrictive Covenants
•
Statute
o Antigua & Barbuda, Barbados, Guyana, St. Lucia
•
Common Law
o Where the landlord/assignee remains inactive for a considerable period of time
while open breach is occurring.
▪
Hepworth v. Pickles [1906] 1 Ch. 108
o Release of a covenant need not be express. If the lessor is aware of a
continuing breach and acquiesces in it for a long time, where, for example,
with full knowledge, he receives rent, it will be presumed that he has either
released the covenant or granted a licence for the user.
o Where the character of the neighbourhood in which the premises are located are
so entirely altered that it would be inequitable to insist upon rigorous observance
of a restrictive covenant that is no longer of value.
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▪
Chatsworth Estates v Fewell [1931] 1 Ch. 224
o In an action to enforce restrictive covenants against a purchaser with
notice, bound only in equity, the defendant relied on two equitable
defences - namely:- (a) A general change in the character of the
neighbourhood; (b) An allegation that this change was brought about by
the acts or omissions of the plaintiffs or their predecessors: Held (a) In
order to succeed on the first ground the defendant must show so complete
a change in the character of the neighbourhood as to render the covenants
valueless to the plaintiffs, so that an action to enforce them would be
unmeritorious, not bona fide, and merely brought for some ulterior
purpose. The defendant's first ground of defence is that there has been
such a complete change in the character of the neighbourhood, apart from
the plaintiffs' acts or omissions, that the covenants are now unenforceable.
But to succeed on that ground the defendant must show that there has
been so complete a change in the character of the neighbourhood that
there is no longer any value left in the covenants at all. A man who has
covenants for the protection of his property cannot be deprived of his
rights thereunder merely by the acts or omissions of other persons unless
those acts or omissions bring about such a state of affairs as to render the
covenants valueless, so that an action to enforce them would be
unmeritorious, not bona fide at all, and merely brought for some ulterior
purposes. It is quite impossible here to say that there has been so complete
a change in the character of this neighbourhood as to render the covenants
valueless to the plaintiffs. Whether right or wrong the plaintiffs are
bringing this action bona fide to protect their property, and it is hopeless
to say that the change in the character of the neighbourhood is so
complete that it would be useless to give them any relief. (b) In order to
succeed on the second ground, the defendant must make out a sort of
estoppel by showing that the plaintiffs' acts and omissions were such as to
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justify a reasonable person in believing that the covenants were no longer
enforceable.
o In order to keep their estate purely residential the plaintiffs' predecessors
had imposed covenants preventing any house being used "otherwise than
as a private dwelling-house." They or the plaintiffs had however licensed a
number of schools, some blocks of flats, a hotel, and, in certain exceptional
circumstances, three boarding houses, and without the plaintiffs'
knowledge about half a dozen other boarding houses were being carried
on in the area, which however still remained mainly residential.
o Held, that these acts and omissions did not prevent the plaintiffs from
restraining the defendant from using his house as a guest house.
o Farwell J: “The result of the evidence is that in my view the area in question
still remains a residential area. In considering whether an area is
residential or not there is a clear distinction between residential flats and
boarding houses. The defendant contended that for this purpose there was
no distinction and that a really well conducted paying guest house was just
as residential as a block of flats. I cannot accept that view. A residential
area means an area in which persons reside more or less permanently. A
hotel or boarding-house area is quite different. This area remains mainly
residential, although there are many flats, some few boarding-houses,
some schools, and so on. Although the area is no longer confined to single
dwelling-houses, and the covenants have been somewhat relaxed in the
sense that some boarding-houses or guest houses have been permitted,
and some other houses have been put to uses not strictly within the
covenants, still, on the whole, and taking it broadly, the area still retains
its character of being a residential area.”
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▪
Re Landfall (1970) 17 WIR 178
o The applicants proposed to purchase "Landfall", a property situate at
Sandy Lane, St James. This property was subject to various covenants by
virtue of which its use was restricted, in substance, to purposes connected
with a dwelling-house.
The applicants sought the discharge or
modification of the covenants so as to permit use of the property for "hotel,
motel, lodging house and apartments with allied facilities".
The
application was made on the following grounds: (a) that because of
changes in the character of the neighbourhood the restriction ought to be
deemed obsolete; (b) that the continued existence of the restriction would
impede the reasonable user of the land without securing to any person
practical benefits sufficient to justify the continued existence of the
restriction; and (c) that the proposed discharge or modification would not
injure the persons entitled to the benefit of the restriction. Held: (i) that
the property was in a clearly defined neighbourhood, quite distinct from
the surrounding areas and there had been no change in the character
thereof; (ii) that the development of "Landfall" for hotel, motel, lodging
house or apartment use would spoil the privacy and quiet of the
neighbourhood. Increased traffic and domestic staff with the concomitant
increase in noise would detract from the character of the enclave as a highclass residential area and the court was not satisfied that this present use
was unreasonable nor that practical benefits did not enure to other
persons by the continuation of the covenants; and (iii) the proposed
discharge or modification would injure the persons entitled to the benefit
of the restriction.
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o Where a single owner becomes entitled to both dominant and servient
tenements.
▪
Re Tiltwood [1978] Ch. 269
o In June 1951, L, the purchaser of the agricultural land forming part of an
estate surrounding a mansion house and grounds, covenanted with the
vendor to use the four parcels thereof for agricultural purposes only and
not permit the erection of any building thereon. The vendor took the
covenant to protect the view to the south of the mansion house. In
February 1952 the vendor conveyed to S the mansion house and grounds
with the benefit of the covenants as to the four parcels which were
contained in the 1951 conveyance. The vendor also conveyed to S a strip of
land to the south of the parcels, with the grant of a right of way to the strip
from the mansion house. In August 1952, S purchased from L three of his
four parcels (in area about half the burdened land). Having sold off the
western part of the mansion house and some ground without any express
assignment of the benefit of the covenant S divided up the rest of the
benefited and burdened land into six lots. The first four lots, each with an
express assignment of the benefit of the covenants, were sold to the
defendants (part of lot 3 going to the plaintiff). The remaining two lots
each consisting of burdened land, were sold to the plaintiff, and were
conveyed to her subject to the covenants in the 1951 conveyance.
o On the plaintiff's summons for a declaration that the two lots of burdened
land were no longer subject to the covenants in the 1951 conveyance on the
ground that the purchase by S of part of the burdened land had created
unity of seisin (ownership of two plots of land by one person) of the
benefited and that part of the burdened land: - Held, that, where the fee
simple of land benefited and land burdened by restrictive covenants
became vested in the same person, the restrictive covenants were
extinguished unless the common owner recreated them; that, accordingly,
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since S, the common owner, had not re-created the covenants when
dividing up and selling the land, the plaintiff, as purchaser of the burdened
land, was entitled to a declaration that she was no longer bound by the
covenants which were extinguished.
▪
Texaco Antilles Ltd v Kernochan [1973] AC 604
o In 1925 BLC Ltd which owned a tract of land in the Bahama Islands
prepared a building scheme for part of the land. The land allotted to the
scheme was divided into 18 blocks sub-divided into lots. The lots were
sold on the basis of a printed form of conveyance containing appropriate
restrictive covenants binding on the company, the purchasers and their
successors inter se. Condition 4 of the restrictions, set out in a schedule
to the respective conveyances, provided inter alia: ‘No machine shop,
public garage or manufacturing establishment will be permitted on any of
the lots …’ Between 1939 and 1942 C Ltd acquired from different vendors
lots 13 to 18 and 39 and 40 of block 3. All the conveyances were expressed
to be subject to the restrictions imposed by BLC Ltd. In 1951 C Ltd
conveyed lots 13 to 18 to predecessors of the defendants, and in 1954 C Ltd
conveyed lots 39 and 40 to predecessors of the plaintiffs.
Both
conveyances were expressed to be subject to the restrictions imposed by
BLC Ltd. The defendants acquired lots 13 to 18 in 1968 with the intention
of erecting a petrol station thereon. In an action by the plaintiffs for an
injunction restraining the defendants from building a public garage on lots
13 to 18 in breach of condition 4 of the restrictions, the defendants
contended, inter alia, that the restrictions were unenforceable between the
plaintiffs and themselves as successors in title to lots which had previously
been in the common ownership of C Ltd. Held – Since lots 13 to 18 and lots
39 and 40 were part of a larger estate which had been made subject to a
building scheme, the fact that those lots had subsequently come into
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common ownership did not put an end to the restrictions so far as they
affected the relations inter se of subsequent owners of the lots since there
was nothing in the conveyances putting an end to the unity of seisin, or in
the surrounding circumstances, to indicate that the restrictions of the
scheme were no longer to apply. The conditions were expressly stated to
apply to the newly acquired lots. Accordingly, the plaintiffs were entitled
to claim an injunction
o N.B. Where the demised premises consist of agricultural holdings, the covenant
is one to use and cultivate the land in a husband like manner according to the
custom of the country.
▪
Wedd v Porter [1914] 2 K.B 191
o A tenant from year to year of a farm and buildings at a rent, who has not
entered into any other express agreement with his landlord than as to the
amount of the rent, is under an obligation implied by law to use and
cultivate the land in a husband like manner, according to the custom of
the country and to keep the buildings wind and water tight; and the
assignee of the reversion can at common law enforce this implied
obligation against the tenant.
o Where, therefore, a tenant of a farm and buildings under a lease
containing express covenants by him continued in occupation after the
expiration of the term, the landlord and tenant agreeing that the terms of
the old lease should not apply, but not agreeing upon the terms of the new
tenancy except that there should be a yearly tenancy at a fixed rent, and
the landlord assigned the reversion during the continuance of the tenancy,
the assignee of the reversion was held entitled to sue the tenant for
breaches of the above-mentioned implied obligations which occurred after
the assignment of the reversion.
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3: Covenant not to Commit Waste
•
Waste is whatever does lasting damage to the freehold inheritance of land or
anything which alters the nature of the property.
•
Tenants for a fixed term of years are bound to repair and maintain the property in
the state in which it was at the time of the grant.
•
All periodic tenants are obliged implicitly to use the premises in a “tenant-like”
manner. There is no other obligation imposed on periodic tenants to repair, except
where the terms of the tenancy expressly impose such obligation on the tenant.
•
Waste may be of the following types:
o
Ameliorating
o Voluntary
o Permissive
o Equitable
•
Meux v. Cobley [1892] 2 Ch. 253
o Under an agricultural lease, in 1889, of a farm near London, consisting of arable
and pasture land, the lessee covenanted to yield up the premises at the end of
the term, together with all fixtures and "improvements" which might during the
term be fixed to or erected on the demised premises, except such fixtures as
should be erected by the lessee, and which he should be at liberty to remove in
case the lessor should object to purchase the same by valuation; and also that
he would "in all respects cultivate and manage the farm, and every part thereof,
in a good, proper, and husband like manner, according to the best rules of
husbandry practised in the neighbourhood." The lessee converted part of the
demised premises into a market garden, erecting glass-houses thereon for the
cultivation of hot-house produce for the London market. The lessor brought an
action for an injunction to restrain the lessee from converting the farm into a
market garden, alleging that his doing so was a breach of covenant and was
waste, causing injury to the inheritance. At the trial it was proved that other
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farms in the neighbourhood had been converted into market gardens, that
being found to be the most profitable mode of cultivation:
o Held, that the conversion into a market garden did not constitute a breach of
the covenant, and, inasmuch as injury had not been thereby caused to the
inheritance, was not actionable "waste." To obtain an injunction against a
defendant on the ground of "waste," the plaintiff must prove that what the
defendant is doing is prejudicial to the inheritance; if it improves the value of
the land, it is not "waste."
•
Warren v Keen [1954] 1 QB 15
o A weekly tenant is only liable for voluntary waste. “The tenant must take proper
care of the place. He must, if he is going away for the winter, turn off the water
and empty the boiler. He must clean the chimneys, when necessary, and also
the windows. He must mend the electric light when it fuses. He must unstop
the sink when it is blocked by his waste. In short, he must do the little jobs
about the place which a reasonable tenant would do. In addition, he must, of
course, not damage the house, willfully or negligently; and he must see that his
family and guests do not damage it: and if they do, he must repair it. But apart
from such things, if the house falls into disrepair through fair wear and tear or
lapse of time, or for any reason not caused by him, then the tenant is not liable
to repair it.”
o It was suggested that an action lies against a weekly tenant for permissive waste.
I do not think that that is so. It has been held not to lie against a tenant at will,
and in my opinion, it does not lie against a weekly tenant. The only obligation
on a weekly tenant is to use the premises in a tenant-like manner. That does not
cover the dampness and other defects alleged in the particulars of claim.
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•
Manchester Dev. v Gamerson [1986] 1 All ER 449
o In 1973 the plaintiffs granted a lease of industrial premises to a tenant for a term
of 42 years. The tenant installed extractor fans and pipes as trade fixtures for
use in its chemical business and in the course of installing the fans and pipes
cut holes in the outside walls of the premises. In 1978 the first defendant, a
company controlled by the second defendant, purchased the tenant’s trade
fixtures and went into occupation of the premises either as tenant or licencee,
its exact status at the material time being uncertain. After nine months the first
defendant decided not to continue occupying the premises and gave up
possession to the plaintiffs. However, before doing so the first defendant, at the
instance of the second defendant, removed the trade fixtures without making
good the holes made in the walls for the installation of the fans and pipes. The
first defendant later went into liquidation. The plaintiffs brought an action
against the defendants claiming damages for waste. The judge held that in
removing the fixtures without making good the holes the first defendant had
committed tortious acts of waste for which the second defendant was personally
liable because he had directed and procured the tortious acts. The second
defendant appealed, contending that the defendants were not liable for damage
lawfully caused when the fixtures were installed, but only for any added damage
which occurred when the fixtures were removed.
o Held (Sir George Waller dissenting)—The common law duty to make good or
repair damage to premises caused by the removal of tenant’s or trade fixtures
included an obligation to fill in holes left in the walls of a building when the
fixtures were removed if the holes affected the structure rather than just the
decoration of the building, because while the fixtures remained installed the
building remained weather proof but without the fixtures the premises were no
longer weather proof and the reversion was adversely affected. For that reason,
also, the burden of filling in the holes lay on the person who removed the
fixtures, because that was when the waste occurred, and not on the person who
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made the holes. On the basis that the first defendant had the same right as a
tenant to remove the fans and pipes, the first defendant nevertheless committed
waste when it failed to fill up the holes left after removing the fans and pipes,
because the building then ceased to be weather proof and was damaged as a
result. As the person who directed and procured the first defendant to commit
the waste, the second defendant was personally liable for the first defendant’s
tort. His appeal would therefore be dismissed.
•
Yellowly v Gower (1855) 11 Ex Ch. 274
o The liability of tenants for years for both permissive and voluntary waste was
the same as that of a life tenant.
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5: To Keep Premises Insured
•
The covenant to insure the demised premises is usually not found in leases subsisting
for less than seven years. However, in most modern leases of whatever duration the
liability for arranging insurance is expressly provided for; and a covenant to insure is
entered into either by the landlord or the tenant. In leases exceeding this period, the
covenant may be on the part of either the landlord or the tenant. The usual practice is
for the landlord to effect the coverage and recover the cost by way of an additional
reservation of rent.
•
The covenant to insure may be express or implied.
•
A tenant’s covenant to insure may require that it be effected with insurers of whom the
landlord approves and in specified names.
•
If the covenant is by the tenant, the insurance will be at his expense.
•
Where the landlord expressly covenants with his tenant, for their mutual benefit, to
effect insurance against fire risks, neither the landlord (nor therefore the insurers by
subrogation) can maintain an action against the tenant for damages in the event of a
fire caused by the tenant’s negligence. A bare covenant by the landlord to effect
insurance does not raise a conclusive presumption that any insurance taken out
pursuant to the covenant enures for the benefit of the landlord and the tenant:
o Lambert v Keymood [1997] 2 EGLR 70.
▪
The claimant owned a number of adjoining properties and they were occupied
by the defendant. The defendant’s negligence caused a fire which damaged the
properties. The defendant alleged that the contractual arrangements with the
claimant were such that it was the claimant’s responsibility to arrange insurance
and that would provide for the defendant not to be liable under subrogation.
The claimant denied that this was the arrangement. He also argued that even if
it was then any policy would require the defendant to act in a reasonable way
towards the insured property and in the present circumstances the defendant
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had acted with wanton disregard to safety and would have been in breach of
any reasonable precautions clause.
▪
The court held the defendant liable. The arrangement between the parties
would be read as requiring the claimant to insure the properties. But even if this
was to be assumed it was not always the case that a policy is intended to
exonerate the tenant. That question could only be decided by looking at the
wording of the lease and/or the insurance policy. There was no intention here.
▪
If there had been a policy which covered the tenant then the reasonable
precautions argument would also have worked in the claimant’s favour. In the
Berni Inns case the policy covered acts of negligence but no policy would cover
the acts of recklessness that had occurred in Lambert.
• It has been held that there will not generally be implied a term that the landlord will
place the insurance so as not to impose an unnecessarily heavy burden on the tenant.
o Bandar Property Holdings Ltd v JS Darwen (Successors) Ltd [1968] 2 All ER 305.
• but it may be that the general principle that service charges and similar impositions are
not to be inflated by unreasonable expenditure by the landlord applies
o Finchbourne Ltd v Rodrigues [1976] 3 All ER 581, CA. following Viscount
Tredegar v Harwood [1929] AC 72, HL
• In construing a covenant to insure 'for the full cost of reinstatement against loss or
damage by fire', it is proper to have regard to the fact that there will be a delay between
the occurrence of the damage and the completion of the reinstatement and that
building costs are likely to rise in that period.
o Gleniffer Finance Corpn Ltd v Bamar Wood and Products Ltd (1978) 37 P & CR
208, 122 Sol Jo 110.
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•
Where a tenant covenants in a tenancy of a dwelling to indemnify the landlord in
respect of insurance premiums, the landlord may not recover such expenditure unless
the cost was reasonably incurred.
Breach of the Covenant to Insure Demised Premises
• Where any part of the demised premises remains uninsured during the term of the
tenancy.
• Where the insurance is not subsisting at any time during the term.
• Breach of the covenant is usually a cause of forfeiture; but this may not be so if the
landlord is entitled to insure on default, and if the amount of the premium is
reserved as additional rent:
o Doe d Pittman v Sutton (1841) 9 C & P 706.
• If the landlord pays the premium, this is a waiver of the forfeiture:
o Mills v Griffiths (1876) 45 LJQB 771.
• As to the mode of proof of non-insurance
o Chaplin v Reid (1858) 1 F & F 315.
• Undisturbed possession by the tenant is evidence that there has been no breach:
o Montresor v Williams (1823) 1 LJOS Ch 151.
• Formerly there was no relief against forfeiture for non-insurance (Green v Bridges
(1830) 4 Sim 96), but some relief is now allowed.
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6: To Pay Rates and Taxes
•
“The tenant for himself and his assigns covenants with the landlord that he will pay all
Water and Sewerage charges and all electricity and telephone charges incurred in
respect of the said premises immediately when they shall become due and payable.”
•
The obligations of the parties depend upon the provisions of the lease and the
applicability of statute. Antigua & Barbuda - Section 53(b), Registered Land Act
Barbados - Section 157(f), Property Act, 1979.
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7: Covenant with respect to Alterations and Improvements
•
“The tenant for himself and his assigns covenants with the landlord not without the
prior written consent of the Landlord (such consent not to be unreasonably withheld
or delayed) to injure cut maim or remove any of the walls or partitions of the demised
premises NOT without the previous consent in writing of the Landlord (such consent
not to be unreasonably withheld or delayed) to make any alterations amendments or
renovations, the same shall be carried out to the Landlord’s reasonable satisfaction AND
at the expense of the Tenant.”
•
There is usually contained within a lease a covenant on the part of the tenant not to
make any alterations to the demised premises. An alteration is effected where the
construction or fabric of the building is altered.
•
Bickmore v Dimmer [1903] 1 Ch. 158
o The lease of a shop occupied by a jeweler and watchmaker contained a covenant by
the lessee that he would not make or purport to be made any alteration to the
demised premises without the previous written consent of the lessor. The tenant
subsequently installed a large clock at the front of the premises in order to carry out
his business and the landlord alleged that he had breached the covenant not to make
alterations without consent of the landlord.
o Held, that some limitation must be placed on the words of the covenant, and that
the erection of a large clock, affixed without the consent of the lessor to the exterior
of the wall of the house by means of bolts driven into it, was not a breach of the
covenant, and consequently that a mandatory injunction to compel the removal of
the clock ought not to be granted. In my opinion, the words "alteration to the said
premises" apply only to alterations which would affect the form or structure of the
premises. But whether I am right or wrong in so drawing the line, I desire to add
that, in my opinion, we ought so to draw the line as that the covenant will not
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operate to prevent a tenant who was entitled to carry on his business from doing
those acts which are convenient and usual for a tradesman to do in the ordinary
conduct of his business. So, to construe the covenant that the tradesman could not
affix a lamp or, as here, a clock to the front of his shop if he thought it convenient
to do so for the purposes of his business is, as it seems to me, a construction which
could not have been in the contemplation of the parties.
o The term improvement is not frequently found in leases. An improvement is usually
subsumed however under the term `alterations’. Thus, improvements can usually
be effected pursuant to the consent clause contained in the covenant against
alterations.
o Somervell, L.J: "Mr. Blundell on behalf of the plaintiff concedes that the plaintiff's
acceptance of rent has operated as a waiver in respect of the unlawful underletting,
but he contends that the breach of covenant 'not to use the said premises for any
other purpose than as a private dwelling-house' is continuous, and has therefore not
been waived. In these circumstances the only issue between the parties is whether
or not the last-mentioned breach is 'continuous' in character". A tenant does not
cease to use his house as a private dwelling-house because he has a married couple
in it. If there was a breach of that covenant it must be because the sub-tenant was
given under his sublease exclusive possession of a part of the house. If, as is
conceded, the subletting was done once and for all, prima facie the breach that
would have to be alleged of this other covenant is something which had happened
once and for all.
o Both the breach of covenant against subletting and the alleged user of the house
otherwise than as a private dwelling-house arose in my opinion from the subtenancy, and in my opinion, it is impossible in law to distinguish for this purpose
and say that the one was done once for all and the other was a continuing breach.
o But here there is a sublease of part of a house for ordinary occupation as a dwellinghouse by the sub-tenant, and it is sought to bring that subletting within the general
words of a wider covenant which is obviously primarily aimed against business use.
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It seems to me impossible to differentiate between the two things and say that the
subletting was done once and for all, but that the occupation of the subtenant is
continuous
o The county court judge did not approach the matter on the basis of something
which had been done once and for all. After referring to Walrond v. Hawkins, the
county court judge said that the best way of defining what was continuous was to
say it must be "something which still remains within the tenant's power to
discontinue". I am not sure that that is quite right. I think that it perhaps disregards
what is very important in these cases, that is, the lessor's actual knowledge, or the
knowledge which he must be presumed to have at the time when he accepts the
rent.
o However, that it is a factor to be borne in mind in considering whether the breach
is continuous or not is, in my view, established by the cases. The authorities show
that there is no single formula which can be applied in all cases.
•
The term improvement is not frequently found in leases. An improvement is usually
subsumed however under the term `alterations’. Thus, improvements can usually be
effected pursuant to the consent clause contained in the covenant against alterations.
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8: Covenant to Repair
•
This covenant can either be a tenant’s covenant or a landlord’s covenant. At common
law, there is no implied obligation on the part of a landlord to put or keep the premises
in repair. (N.B. Exception in case of furnished premises). A landlord’s obligation to
repair must be expressly contained in the lease. Whereas at common law the Landlord
has no implied obligation when the lease contains no covenant for repair, in those
circumstances, a tenant has an implied obligation to use the demised premises in a
tenant like manner, i.e., he must take proper care of the premises. (See the covenant as
to user). An express covenant to repair excludes an implied covenant to that effect.
Construction of the Tenant’s Express Covenant to Repair
•
“To yield up the demised premises to the Landlady (Tenants’ fixtures only excepted)
and with vacant possession of the entirety thereof at the expiration or sooner
determination of the said term in good and substantial repair and condition fair wear
and tear excepted (Landlady’s fixtures, fittings and appurtenances being duly renewed
and replaced where necessary) in accordance with the several agreements and
obligations on the part of the Tenants hereinbefore contained.”
•
“The tenant covenants for himself and his assigns with the landlord to keep every part
of the demised premises, including but not so as to exclude anything not specified, the
doors, windows, window-panes, locks, fastenings, taps, baths, sinks, washbasins, toilet
bowls and connections thereof, the gas and electric wiring and light and power fittings
in as good a state of repair and condition as the same are now in, deterioration from
reasonable and proper wear and tear and damage by termites, fire, lightning, acts of
God, the State’s enemies or civil commotion, earthquake, storm or tempest excepted.”
•
Liability under a covenant to repair runs from the date of the lease.
o Ebbetts v Conquest [1895] 2 Ch. 377
▪
In 1840, A was granted a lease to run for 61 years, containing a covenant to keep
the property in repair and to yield them up at the end of the term in good repair.
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In 1851, A sublet part of the property to B for 47½ years less 10 days. The
underlease contained covenants substantially identical with the covenant in the
head lease. The underlease showed plainly that there was a title superior to the
immediate lessor. The premises fell into disrepair and the plaintiffs sued for
damages under the covenant in the underlease to keep the premises in repair.
Held: The measure of damages for breach of a covenant to keep demised
property in repair is not the same in the case of an underlease as in that of a
direct lease with a freehold reversion. Where the underlessee has notice that
there is a superior landlord, the immediate lessor's liability over to that landlord
must be taken into account; and the cost of putting the property into repair at
the end of the term may properly be considered for that purpose.
o Quick v Taff Ely BC [1986] QB 809
▪
The plaintiff was the tenant of a house owned by the defendant council. As a
result of very severe condensation throughout the house decorations,
woodwork, furnishings, bedding and clothes rotted, and living conditions were
appalling. The condensation was caused by lack of insulation of window lintels,
single-glazed metal-frame windows and inadequate heating. The plaintiff
brought proceedings in the county court, alleging that the council was in breach
of its covenant, implied in the tenancy agreement by section 32(1) of the Housing
Act 1961 , 1 "to keep in repair the structure and exterior" of the house and seeking
an order for specific performance of the covenant. The judge held that the
council was in breach of the repairing covenant in respect of, inter alia, the
condensation and made an order requiring the council to insulate the lintels and
to replace the metal-frame windows. On appeal by the council, it was held,
allowing the appeal, that liability under the covenant did not arise because of
lack of amenity or inefficiency but only when there existed a physical condition
which called for repair to the structure or exterior of the dwelling house; and
that, as there was no evidence to indicate any physical damage to or want of
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repair in the windows or lintels themselves or any other part of the structure and
exterior, the council could not be required to carry out work to alleviate the
condensation. “The covenantor is obliged only to restore the house to its
previous condition. He does not have to make it a better house than it originally
was.”
•
Where at the commencement of the lease the demised premises are in a state of
disrepair, a covenant by a tenant to “keep” the premises in repair obliges him to put
them into the required state at his expense:
o Proudfood v Hart (1890) 25 QBD 42
▪
The house and premises in question were let by the plaintiff to the defendant
under an agreement in writing for a term of three years, and the tenant thereby
agreed that he would during the said term, keep the premises in good tenantable
repair and so leave the same at the expiration thereof. The tenant had effected
repairs of his own expense by papering the walls of rooms, where the paper
which was upon them when the tenancy commenced had become worn out; in
repainting the internal woodwork, where the paint which was on such
woodwork when the tenancy commenced had worn off; in whitewashing and
cleaning the staircases and ceilings; and in replacing with a new floor a kitchen
floor which had existed when the tenancy commenced. Held: Under an
agreement to keep a house in "good tenantable repair," and so leave the same at
the expiration of the term, the tenant's obligation is to put and keep the premises
in such repair as, having regard to the age, character, and locality of the house,
would make it reasonably fit for the occupation of a tenant of the class who
would be likely to take it. Damages were awarded to the plaintiff in respect of
the cost incurred by the plaintiff after the termination of the tenancy in repapering the walls of the room where the paper had worn out over the course of
the tenancy, repainting the internal woodwork, whitewashing and cleaning the
staircases and ceiling and replacing the kitchen floor with a new floor.
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▪
Cave J: “Where the premises are not in repair when the tenant takes them, he
must put them into repair in order to discharge his obligation under a contract
to keep and deliver them up in repair. If the premises are out of repair at any
time during the tenancy the landlord is entitled to say to the tenant, "you have
now broken your contract to keep them in repair;" and if they were out of repair
at the end of the tenancy he is entitled to say, "you have broken your contract to
deliver them up in repair." What is tenantable repair? It is difficult to suggest
any material difference between the term 'habitable repair' used in this
agreement, and the more common expression 'tenantable repair'; they must both
import such a state as to repair that the premises might be used and dwelt in not
only with safety, but with reasonable comfort, by the class of persons by whom,
and for the sort of purposes for which, they were to be occupied. Good repair is
tenantable repair. In order to satisfy the tenant's obligation under his contract
it was not sufficient for him to deliver up the premises in the same condition of
repair as when he took them; he must deliver them up in good repair, even if
they were not in good repair when the tenancy began. The result of the cases
seems to be this: the question whether the house was, or was not, in tenantable
repair when the tenancy began is immaterial; but the age of the house is very
material with respect to the obligation both to keep and to leave it in tenantable
repair. The age of the house must be taken into account, because nobody could
reasonably expect that a house 200 years old should be in the same condition of
repair as a house lately built; the character of the house must be taken into
account, because the same class of repairs as would be necessary to a palace
would be wholly unnecessary to a cottage; and the locality of the house must be
taken into account, because the state of repair necessary for a house in Grosvenor
Square would be wholly different from the state of repair necessary for a house
in Spitalfields. The house need not be put into the same condition as when the
tenant took it; it need not be put into perfect repair; it need only be put into such
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a state of repair as renders it reasonably fit for the occupation of a reasonablyminded tenant of the class who would be likely to take it.”
•
NB: The standard to which you are held is the standard at the time of the lease.
o Sacks, L.J. in Brew Bros. Ltd v Snax (Ross) Ltd [1970] 1 All ER 587 at pg. 602
▪
On 30 June 1965, landlords let to tenants for a 14-year term premises of which
the landlords owned the freehold and of which they had been in effective control
for over a month at the time of the letting. The lease contained covenants by the
tenants ‘2(e) … to repair uphold support maintain … and keep in repair the
demised premises … (f) To pay on demand a reasonable share … of the expense
incurred in maintaining repairing and cleansing all party walls … drains ways
and other easements used or enjoyed … in common with the owners or occupiers
of any adjoining premises … (i) To permit the Landlords … twice in every year
… to enter upon and view the condition of the demised premises and to repair
and make good all decays defects and want of repair due to the breach by the
Tenant of any covenant …’ In November 1966, the flank wall of the demised
premises tilted towards the neighbouring commercial garage of which the
plaintiffs were lessees and occupiers. By an arrangement made between the
landlords and the tenants with the concurrence of the plaintiffs without
prejudice as to liability the wall was shored up temporarily, an obstruction being
thus caused to the plaintiff’s garage forecourt. The foundations of the wall were
found to have shifted because of seepage from drains below the demised
premises which had cracked, probably because of wartime bomb damage. The
trial judge found that the landlords ought to have known at the date of the
demise that the foundations of the wall were so defective that unless they were
remedied the whole building was doomed and was liable to collapse into the
neighbouring property. The trial judge also found that, in order to render the
premises safe, the drains needed replacing, the foundations needed
underpinning and the flank wall and part of the adjacent front and rear walls
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needed to be taken down and rebuilt, that this work would cost about £8,000,
after which the value of the repaired building would be about £7,500-£9,500, and
that the cost of a new building would be about £9,000-£10,000. During the
hearing at first instance the landlords agreed to abate the nuisance without
prejudice to their rights against the tenants, and between the hearing and the
appeal they carried out work costing about £5,000. Held: Clause 2(i) of the lease
imposed an obligation to repair on tenants and not on the landlords.
▪
(vi) (Harman LJ dissenting except as to the work on the foundations) the
landlords could nevertheless not recover under the repairing covenants in the
lease any part of the cost of the work which was required for the purpose of
rendering the demised premises safe (and not specifically required for abating
the nuisance), because—
▪
(a) whether work was ‘repair’ within the meaning of a repairing covenant was in
every instance a question of degree to be approached by looking at the particular
building, the state in which it was at the date of the lease and the precise terms
of the lease;
▪
(b) the question whether the work was ‘repair’ was to be determined not by
looking at component parts of the work but by asking whether the total work to
be done could properly be described as ‘repair’ because it involved no more than
renewal or replacement of defective parts, or whether it was in effect renewal or
replacement of substantially the whole; and
▪
(c) it was the work which the trial judge decided was necessary to render the
premises safe, and not the work actually done by the landlords, which had to be
considered by the court, and, applying the foregoing test the work required to
render the premises safe was more than ‘repair’, and so was not within the
repairing covenant.
▪
“It seems to me that the correct approach is to look at the particular building,
look at the state which it is in at the date of the lease, look at the precise terms
of the lease, and then come to a conclusion whether, on a fair interpretation of
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those terms in relation to that state, the requisite work can fairly be termed
repair. However large the covenant it must not be looked at in vacuo. Quite
clearly this approach involves in every instance a question of degree…”
Standard of Repair
•
An agreement by a tenant that he will keep and leave a house in “good tenantable
repair” obliges him to keep and leave it in such repair as, taking into account the age,
character, and locality of the house, would make it reasonably fit for the occupation of
a reasonably-minded tenant of the class that would be likely to want such a house. The
house is not required to be in the same condition as when it was let, nor in perfect
repair. “Good repair” means much the same thing as “tenantable repair: Proudfoot v
Hart.
•
It doesn’t matter what term is used in the lease to define the state of repair required,
the standard required is that of good tenantable repair.
o Anstruther-Gough-Calthorpe v Mc Oscar [1924] 1 KB 716
▪
A lease of three newly erected houses made in 1825 for a term of ninety-five
years contained a covenant by the lessee in very wide terms, the effect of which
was, put shortly, that he would during the term well and sufficiently repair the
premises with all manner of necessary reparations and would yield up at the
end of the term the said premises so being in all things well and sufficiently
repaired. At the end of the term the assignee of the reversion brought an action
against the assignees of the lease for breach of the above covenant. By an order
of the Court the assessment of the damages was referred to an arbitrator. At the
beginning of the term the houses were country houses; at the end of the term
the only tenants likely to occupy the houses or parts of them would be tenants
on short terms. The arbitrator assessed the damages at two alternative sums.
He computed the smaller sum on the basis that the defendants were liable to
execute such repairs only as in view of the age, character, and locality of the
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premises would make them reasonably fit to satisfy the requirements of
reasonably minded tenants of the class that would then be likely to occupy
them. He found that tenants of this class would require only such repairs as
would keep out wind and water: - Held, that this was not the proper measure
of liability; but that the defendants were liable for the cost of doing all necessary
acts well and sufficiently to repair the premises in the words of the covenant,
that is to say, for the cost of putting them into that state of repair in which they
would be found if they had been managed by a reasonably minded owner,
having regard –
▪
to their age;
▪
to their character and ordinary uses, or the requirements of tenants of the class
likely to take them, at the time of the demise or at the commencement of the
term.
▪
In other words, if, at the commencement of a long lease, the house is a desired
one situated in an expensive and fashionable locality, the covenantor must put
the property back into its original state: he cannot argue that his obligation is
to be measured by the current low standards of the locality.
o Lurcott v Wakely [1911] 1 KB 905
▪
A lease of a house in London contained a covenant by the lessee to substantially
repair and keep in thorough repair and good condition the demised premises
and at the end or sooner determination of the term to deliver up the same to
the lessors so repaired and kept. Subsequently the reversion expectant on the
lease was assigned to the plaintiff and the lease to the defendants. Shortly before
the expiration of the term the London County Council served a notice on the
owner and occupiers requiring them to take down the front external wall of the
house to the level of the ground floor as being a dangerous structure, and the
plaintiff called upon the defendants to comply with this notice, which they
failed to do. After the expiration of the term, the plaintiff, in compliance with a
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demolition order of a police magistrate, took down the wall to the level of the
ground floor, and then, in compliance with a further notice of the London
County Council, took down, the remainder of the wall and rebuilt it in
accordance with modern requirements. The house was very old and the
condition of the wall was caused by old age, and the wall could not have been
repaired without rebuilding it: ▪
Held, that the defendants were liable under the covenant to recoup the plaintiff
the cost of taking down and rebuilding the wall. For my own part, when the
word "repair" is applied to a complex matter like a house, I have no doubt that
the repair includes the replacement of parts. Of course, if a house had tumbled
down, or was down, the word "repair" could not be used to cover rebuilding. It
would not be apt to describe such an operation. But, so long as the house exists
as a structure, the question whether repair means replacement, or, to use the
phrase so common in marine cases, substituting new for old, does not seem to
me to be at all material. Many, and in fact most, repairs imply that some portion
of the total fabric is renewed, that new is put in place of old. Therefore, you have
from time to time as things need repair to put new for old. If you properly repair
as you go along the consequence will be that you will always get a house which
will be in repair and usable as a house, but you will not get a house that does
not suffer from age, nor a house which when old is the same as when it was new.
At common law the standard of repair required is that in which a reasonably
minded owner would keep them, after making due allowance for the locality,
character and age of the premises at the date of the lease (Proudfoot v. Hart).
o Brew Bros. Ltd v. Snax (Ross) Ltd, Supra
▪
The express covenant to repair may be unqualified but it is more common to
qualify it by a clause to the effect that the covenantor shall not be liable for “fair
wear and tear” or for “reasonable wear and tear”. The effect of this phrase is to
absolve the tenant from liability for:
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▪
Damage caused by the immediate or direct consequence of a condition
produced by the reasonable use and ordinary operation of natural forces, e.g.,
wind and weather. If it is prefixed with “fair” or “reasonable”, it connotes normal
or ordinary consequences of natural forces in contrast to abnormal or
extraordinary natural events, e.g., lightning, hurricane, flood or earthquake
which would not be covered by the term “fair” and “reasonable.”
▪
Disrepair resulting from reasonable use of the demised premises by the tenant
and other persons in or on the premises, either intentionally or as a normal
incident of the use or exercise of rights of occupation. If the premises are put to
unfair or unreasonable use, the benefits of the exception “fair wear and tear”
would not avail the tenant. This calls into question the conduct of the tenant
and his agents or licensees in the use of the property.
▪
NB: Although the tenant is not liable for the original damage or deterioration
constituting wear and tear, he is liable for any consequential damage resulting
from his failure to rectify the original damage, where it should be obvious to the
reasonable person that, if not rectified, further and lasting damage would ensue.
•
The express covenant to repair may be unqualified but it is more common to qualify it
by a clause to the effect that the covenantor shall not be liable for “fair wear and tear”
or for “reasonable wear and tear”.
Fair wear and Tear - Exception to the Tenant’s Repair Covenant
•
The tenant is not liable for disrepair arising from the normal passage of time and the
elements.
•
The tenant is not liable for disrepair resulting from the reasonable use of the premises
for the purpose for which they were let:
o Gutteridge v Munyard (1834) 1 Mood & R 334 per Tindal CJ @ pg. 336
▪
“What the natural operation of time flowing on effects, and all that the elements
bring about in diminishing the value, constitute a loss, which, so far as it results
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from time and nature, falls upon the landlord. But the tenant is to take care that
the premises do not suffer more than the operation of time and nature would
effect; he is bound by the seasonable applications of labour to keep the house as
nearly as possible in the same condition as when it was demised.”
•
The tenant is not excused from liability for repairs necessitated as a result of abnormal
or improper use or negligence of himself or his servants:
o Regis Property Co. v Dudley [1958] 3All E.R. 491.
▪
A rent-controlled flat was let to a tenant on a monthly tenancy under an
agreement by which the tenant undertook internal repairs, fair wear and tear
excepted. The landlord undertook all exterior repairs and the internal repairs
caused by fair wear and tear. It was held that the exception for fair wear and tear
in the tenant’s repairing covenant did not except the tenant from responsibility
for taking steps to avoid further damage deriving from a defect of repair which
itself was originally due to fair wear and tear.
▪
Lord Denning: I have never understood that, in an ordinary house, a “fair wear
and tear” exception reduced the burden of repairs to practically nothing at all.
It exempts a tenant from liability for repairs that are decorative and for
remedying parts that wear out or come adrift in the course of reasonable use, but
it does not exempt him from anything else. If further damage is likely to flow
from the wear and tear, he must do such repairs as are necessary to stop that
further damage. If a slate falls off through wear and tear and in consequence the
roof is likely to let through the water, the tenant is not responsible for the slate
coming off but he ought to put in another one to prevent further damage.
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•
To avoid liability, the tenant must arrest consequences which would flow from a defect
originally caused by fair wear and tear:
o Haskell v Marlow [1928] 2 KB 45
▪
If as a result of fair wear and tear, other damages take place, there is an exception
to the exception. The tenant is obliged to repair the damage to the roof where
the other damage to take place is the ceiling and carpet. A testator devised a
dwelling-house to his wife for her life, she insuring the same against loss by fire,
"and also keeping the same in good repair and condition (reasonable wear and
tear excepted)," and after her death he directed that the same should fall into his
residuary estate, which was to be divided among his children in equal shares.
The testator's widow occupied the devised premises until her death, a period of
forty-two years. She did nothing actively to injure the premises, but did nothing
substantially to counteract the natural process of decay. The plaintiffs, the
trustees of the will, alleged that she had neglected to keep the premises in good
repair and condition in conformity with the terms of the will, and claimed from
the defendants, her executors, the cost of the necessary repairs:- Held, that the
testator's widow, having accepted and occupied the premises, was bound by the
terms of the devise, that the words of the exception were not to be treated as
mere surplusage, and that a reasonable meaning must be given to them, but that
having regard to the length of time during which no substantial repairs had been
done to the premises, and to the extent of the damage thereby caused, the
widow, as tenant for life, was not protected by the words of the exception, and
that her executors were liable for the damage arising from the natural process of
decay. The tenant (for life or years) is bound to keep the house in good repair
and condition, but is not liable for what is due to reasonable wear and tear. That
is to say, his obligation to keep in good repair is subject to that exception. If any
want of repair is alleged and proved in fact, it lies on the tenant to show that it
comes within the exception. Reasonable wear and tear means the reasonable use
of the house by the tenant and the ordinary operation of natural forces. The
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exception of want of repair due to wear and tear must be construed as limited to
what is directly due to wear and tear, reasonable conduct on the part of the
tenant being assumed. It does not mean that if there is a defect originally
proceeding from reasonable wear and tear the tenant is released from his
obligation to keep in good repair and condition as to everything which it may be
possible to trace ultimately to that defect. He is bound to do such repairs as may
be required to prevent the consequences flowing originally from wear and tear
from producing others which wear and tear would not directly produce.
Breach of the Covenant to Repair
•
The covenant to repair is breached wherever there is want of repair (Baylis v Le Gros
(1858) 4 CBNS 537). Such breach is actionable immediately if there is no provision in
the lease for the service of a notice to repair. Where the lease provides for the service of
a notice to repair, the notice must prescribe the repairs to be effected and the period of
time in which they should be effected.
•
N.B. See table at end of chapter outlining remedies available for breach of this covenant
in respect of the landlord and the tenant.
Remedies for Breach of the Covenant
A: Landlord’s Remedies
•
Damages: if the lease is still subsisting, the measure of damages is the diminution in
value of the reversion. If the action is brought at the end of the term, then the action
would be based on the tenant’s covenant to deliver up the premises in good repair, and
here the measure of damages will be the cost of repair.
o Henderson v Thorn (1893) 2 QB 164:
▪
A lessor brought an action against the lessee during the currency of the lease
to recover damages for breaches of covenant to keep the premises in repair;
the lessee paid a sum into Court, which was accepted by the lessor in
satisfaction, and the action was discontinued. No repairs were done to the
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premises before the determination of the lease, after which date the lessor
brought a fresh action against the lessee to recover damages for breaches of the
covenants to keep in repair and deliver up in repair; the particulars in the
action included the items of non-repair in respect of which the claim had been
made in the first action, and also additional items arising since the date of that
action. The official referee assessed the damages by determining the sum
required at the end of the lease to put the premises into repair, and deducting
therefrom the amount paid into Court and accepted by the plaintiff in the first
action, together with a sum for depreciation:- Held, that the money paid into
Court in the first action must be taken to have been paid in and accepted as
damages for the injury to the reversion, and not as being the sum then required
to put the premises into repair, and that the damages in the second action had
therefore been assessed upon the right principle.
o Joyner v Weekes (1891) 2 QB 31
▪
The general rule with regard to the measure of damages in an action for breach
of a covenant by a lessee to deliver up the demised premises in repair is that
such damages are the cost of putting the premises into the state of repair
required by the covenant. Such measure of damages is not affected by the fact
that, by reason of the terms of a lease granted by the lessor to another lessee
from the expiration of the defendant's term, the lessor is at the time of action
brought no worse off than he would have been if the defendant's covenant had
been performed.
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•
Specific Performance: this will not ordinarily be available because of the difficulty of
supervision. Until recently, the court did not grant such an order against a tenant.
There are very limited circumstances where the courts would act.
o Hill v Barclay (1803-13) All ER Rep. 379
▪
An order for specific performance will not be granted for the failure to comply
with a covenant to repair contained in a lease, the remedy for which lies in
damages. The position with regard to non-payment of rent is different and the
tenant will be forced to comply with that covenant. The landlord cannot have
specific relief with regard to repairs. He may bring an action for damages. Even
after damages are recovered, the landlord cannot compel the tenant to repair,
but he may bring another action. There is no mutuality in it, with regard to
this doctrine. The tenant cannot be compelled to repair.
▪
The doctrine for exclusive possession allows the tenant to exclude all parties
including the landlord. The court of equity would not act in vain. There are
conditions which he must satisfy if not, the landlord would not get SP to be
available to him. Damages in the circumstances, must be insufficient to
address the loss to which the L is alleging. The L must show that he is physically
unable to go on the premises, so he has no order choice but to go to the court
to effect the repairs. The plaintiff was the freeholder of a listed building, which
was occupied by the two defendants under leases expiring in 2004 granted by
the former freeholder of the property. The defendants covenanted in the leases
to keep and maintain the property in good and tenant-like repair throughout
the term and to permit the landlord and its agents reasonable access to
examine the condition of the premises. The defendants maintained, however,
when the premises subsequently fell into disrepair, that the leases were subject
to two agreements which had been entered into prior to the signing of the
leases, under which repairs were to be the responsibility of the landlord and
the cost of work undertaken by the tenants could be deducted from the rent,
and, therefore, that no rent was due under the leases and that they had no
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repairing obligations. The plaintiff thereupon brought proceedings to recover
arrears of rent and determine who was responsible for the repairs. The judge
held that, on the assumption that the agreements and the leases were genuine
documents, where there was a conflict between a lease and a prior agreement,
the rights of the parties were governed by the lease and that in any event there
was no credible evidence that the agreements and the leases were part of one
transaction. He accordingly found that the tenants were responsible for repairs
and were in arrears with their rents, and stood the matter over for further
argument on the form of relief. At the resumed hearing the question arose
whether the court had power to grant an order for specific performance of a
tenant’s repairing covenant. Held – The court had power, in appropriate
circumstances, to order specific performance of a tenant’s repairing covenant,
and there were no constraints of principle or binding authority against the
availability of the remedy; and even if want of mutuality were a decisive factor,
the availability of the remedy against the tenant would restore mutuality as
against the landlord, and the problems of defining the work and the need for
supervision could be overcome by ensuring that there was sufficient definition
of what had to be done in order to comply with the order of the court. Subject
to the overriding need to avoid injustice or oppression, specific performance
would be granted where it was the appropriate remedy, and that would be
particularly so in cases where there was substantial difficulty in the way of the
landlord effecting repairs (e.g., he had no right of access to do so) and the
condition of the premises was deteriorating.
However, the court should
exercise great caution in granting the remedy and should, in particular, ensure
that it was not used to effectuate or encourage mischief which statute was
intended to remedy, namely that of speculators or unscrupulous landlords
buying the reversion of a lease which had little value, and then harassing the
tenant with schedules of dilapidations in order to put pressure on him. In the
instant case, there was no adequate alternative remedy, since the leases
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contained no forfeiture clause or proviso for re-entry, or a term allowing the
landlord to enter the premises to carry out the works himself and there was
evidence of serious disrepair and deterioration of the property. Moreover, the
schedule of works to be carried out was sufficiently certain to be capable of
enforcement.
Accordingly, in those unusual circumstances, an order for
specific performance was appropriate.
B: Tenant’s Remedies
•
Damages: here the measure of damages will be the difference between the values of
the premises as they are and as they would be if repaired, plus any damages for
inconvenience or ill health suffered and any damages to chattels as a result of the
landlord’s breach.
o Hewitt v Rowland [1924] All ER Rep. 344
▪
There was a covenant by the landlord that he should keep the cottage dry and
the outside in repair. On the termination of a 5-year tenancy, the tenant
remained in occupation as a yearly tenant. The tenant later complained to the
successor landlord that the house was damp and a written notice was given to
the landlord’s solicitors. The landlord, having failed to execute the repairs, the
tenant commenced an action to recover damages for breach of the agreement.
It was held: (i) In assessing the damages the tenant was not entitled to complain
of any damage suffered before the notice was given, but the breach being a
continuing one, the damages should be assessed to the date of assessment; (ii)
The measure of damages was the difference between the value to the tenant of
the premises from the date of notice down to the date of assessment of damages
in their present condition and their value if the landlord on receipt of the notice
to repair had fulfilled the obligations of the covenant to repair; (iii) Any damage
to chattels may also be pleaded.
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•
Specific Performance: not generally granted but the court is prepared to make an
order in appropriate cases. May have accrued over a period of time and you can take
the L to court and pay. The problem is what happens when he just continues to renege
on performance? The tenant can compel him to effect the repairs. The circumstances
are not as difficult when the converse is true. Accompanying such an order would be an
undertaking by the tenant that he would allow the landlord to repair.
o Hill v Barclay, Supra
o Jeune v Queen’s Cross Prop. [1973] 3 All ER 97
▪
Where a landlord is in breach of a covenant to repair, the court has jurisdiction
to make an order requiring him to do specific work pursuant to the covenant.
Although it is a jurisdiction which should be carefully exercised, there is no
reason for refusing to make an order for specific performance where the landlord
is plainly in breach of the covenant to repair and there is no doubt as to what is
required to be done to remedy the breach.
•
Equitable Set Off Against Rent: if the landlord sues and the tenant counterclaims for
damages for breach of the landlord’s repairing covenant, the tenant may use this
counterclaim as a defence, by way of equitable set-off for arrears of rent. Further, if the
tenant effected the repairs, he may also set off the cost of the repairs against the rent
due.
o British Anzani v Inter Marine Ltd [1980] QB 137
▪
The plaintiffs, lessees of a plot of land under a building lease, entered into an
agreement in writing with the defendants, whereby the plaintiffs agreed to
construct a warehouse (warehouse: no. 1) on part of the land and then grant an
underlease to the defendants. The agreement provided that the plaintiffs would
make good at their own expense any defects which occurred in the floor of the
building within two years of its completion and that the agreement should
remain in force after the grant to the defendants of the underlease in respect of
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any act or matter remaining to be performed or effected under the agreement.
The underlease made no provision for the plaintiffs to make good any defect in
the floor appearing within two years of completion of the building but did make
provision for the plaintiffs to be liable in certain circumstances for damage to
the floor. A second warehouse (warehouse no. 2) was constructed adjacent to the
first. Practical completion took place in December 1973, and in March 1974 the
defendants went into occupation. A supplemental underlease was granted on
May 22, 1975, at an annual rent of £92,500 payable in arrears. The term granted
was the same as that in respect of warehouse no. 1. The plaintiffs brought an
action against the defendants for possession, unpaid rents, mesne profits and
interest. The defendants counterclaimed for damages for alleged breaches of
express or implied obligations in the two agreements and underleases
concerning the condition of the floor of both warehouses. The defendants
claimed that in April 1973 serious defects appeared in the concrete floor of
warehouse no. 1 due to inadequate floor design, which caused them to evacuate
the building from June 1975 to December 1976, and thereafter only part of the
floor of warehouse no. 1 could be used. Similar defects were alleged to have
appeared in warehouse no. 2 in August 1974. On the question whether the
defendants were entitled in law or in equity to set off against the admitted
liability for rent the sums claimed against the plaintiffs for breaches of
obligations to repair:
▪
Held, that the defendants could set off their claim for unliquidated damages
against the plaintiffs' claim for rent provided that the defendants' equity
impeached the title to the plaintiffs' legal demand for rent; that, although the
defendants' claims for damages arose under the terms of the agreements and not
the leases, there was such a close connection between them that it was only fair
and just that the defendants' equity should be treated as going to the very
foundation of the plaintiffs' claim for rent and, therefore, the defendants were
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entitled to set off their claim under the agreements against their liability for rent
under the leases
o Eller v Grove Crest Investments Ltd [1994] 4 All ER 845
▪
The plaintiff was the tenant of premises on an industrial estate. For some time,
he had complained, to no effect, of alleged acts of nuisance and breach of
covenant by the landlord and in July 1992 he decided to put pressure on the
landlord by withholding his rent. The landlord sent in bailiffs to distrain on his
goods and chattels and the plaintiff was obliged to sign a walking possession
agreement to prevent their physical removal. He then applied ex parte for an
injunction to restrain the landlord from proceeding with the distraint,
contending that in equity he owed no rent because he was entitled to set off his
claims for damages for nuisance and breach of covenant. The injunction was
granted ex parte, but on the landlord’s application it was discharged on the
grounds that although the tenant had an arguable cross-claim and, since it arose
out of the same lease as the claim for rent, they were sufficiently closely
connected to give rise to an equitable set-off, he was bound by authority to hold
that set-off did not affect a landlord’s right to distrain. The plaintiff appealed.
▪
Held – As a matter of fair dealing between the parties a tenant was entitled to
invoke a right of set-off, for example by way of an arguable claim for damages for
breach of covenant, against a claim by the landlord to levy distress. It followed
that the appeal would be allowed and that the plaintiff was entitled to an
injunction to restrain the landlord from proceeding with the distrain. What is
fair dealing seems clear enough? It is contrary to the principle that a landlord
should be able to recover more by distress than he can by action… it would mean
that a landlord whose application for judgment in a claim for rent was defeated
in an arguable cross claim could leave the court and immediately enforce his
claim by levying distress.
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•
Self Help: where the landlord is in breach, the tenant can effect the repairs. The tenant
then regards the cost of repairs as a direct payment of rent. He may therefore claim
credit for this expenditure in assessing his liability for future rent.
o Lee-Parker v Izzet [1971] 3 All ER 1099
▪
The first defendant mortgaged certain properties (all registered land) to the
plaintiffs by way of legal charge dated 13 September 1969 which was duly
registered and under which the plaintiffs’ power of sale arose immediately. The
second defendant was the occupier of one of the properties and the third and
fourth defendants were the occupiers of another. Each of them claimed to be
entitled to be in possession by virtue of a contract to purchase the same between
him and the mortgagor. By notices dated 24 September and addressed to the
second defendant and to the third and fourth defendants respectively, the
plaintiffs gave notice of their charge and stated that they were willing to
complete the purchase on payment of the balance due after deducting the
amount of the deposit and after crediting the monthly sums paid pursuant to cl
9 and that the purchaser should complete within 28 days of the notice or failure
to do so would be treated by the plaintiffs as a repudiation of the contract. At
the time the notices were given no satisfactory mortgage arrangements had been
made for the defendants nor had abstracts of title been delivered. The plaintiffs
subsequently issued a summons claiming against the first defendant, who had
been adjudicated bankrupt, an order for payment and possession. An order for
payment was obtained but produced nothing. The summons claimed against
each of the second, third and fourth defendants a declaration that the relevant
contract was not binding or would cease to be so on failure to comply with the
notice of 24 September, and possession. At the hearing the second defendant
did not admit the contract of 1 April 1969 but sought to establish a different oral
contract; the third and fourth defendants claimed inter alia that the plaintiffs
had repudiated the contract and that they had accepted that repudiation at the
hearing; they further claimed that the mortgagor had promised to effect certain
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repairs and that they had agreed to purchase the property (of which they were
tenants) relying on that promise; that the mortgagor had failed to implement his
promise and they had carried the repairs out themselves at a cost of £630.
▪
Held: The third and fourth defendants were entitled to recoup themselves out of
future rents for the cost of repairs carried out by them but only insofar as those
repairs came within the express or implied covenants of the lessor; it was a
question of fact whether and to what extent their expenditure was proper.
However, the third and fourth defendants further claim a lien for the cost of the
repairs or alternatively for the value of any permanent improvement effected
thereby, and they also claim a set-off against rent in their capacity as tenants.
First, they say that insofar as the vendor was, as landlord, liable to do the repairs
by the express or implied terms of the tenancy agreement, including the
covenants imported by s 32(1) of the Housing Act 1961, they, having done them
themselves, are entitled to treat the expenditure as a payment of rent, of which
reliance is placed on Taylor v Beal That is dicta only and the actual decision must
have been the other way, because one of the majority in opinion thought the
point was not open on the pleadings. Woodfalla however says the case, that is
the dicta, would still seem to be the law. The case is dealt with in Foab on the
question of distress only, citing also Davies v Stacey, where the point was left
open. Foa states: 'Where the lessor covenants to repair and neglects to do so, and
the repairs are thereupon executed by the lessee, a payment made by the lessee
for the cost of such repairs is not (it is submitted) equivalent to payment of rent
so as to reduce the amount for which the landlord may distrain.'
▪
That was not argued before me, and I too leave it open, although if the cost of
doing the repairs can be treated as a payment of rent as an answer to an action
for rent, then I would have thought that the same must be true as an answer to
distress. Taylor v Beal is not cited in Halsbury at all. Surplice v Farnsworth
((1844) 7 Man & G at 586) does not help on this issue since the only question
there was whether the performance by the landlord of his repairing covenant
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was a condition the breach of which entitled the tenant to quit and discharged
him from any further liability during the breach for the payment of rent; and it
was held that it was not. Similarly, Hart v Rogers where the tenant had not done
the repairs does not help on this point. Waters v Weigall cited in the footnote to
Surplice v Farnsworth ((1844) 7 Man & G at 586) does, however, support Taylor
v Beal. Waters v Weigall ((1795) 2 Anst at 576) was a case of sudden emergency
due to a tempest but Macdonald CB laid down a quite general proposition as
follows: 'I do not see how you entitle yourself to the interposition of this Court.
If the landlord is bound in law or equity to repair in consequence of the accident
that has happened, and you were right in expending this sum in repairs for him,
it is money paid to his use; and may be set off against the demand for rent. If you
fail in making out these points, your ground of relief is destroyed in equity, as
well as at law.'
▪
In Taylor v Webb the question which went to the Court of Appeal was the extent
of the liability under a covenant to repair, fair wear and tear excepted, but du
Parcq J had held that the covenants to repair and to pay rent being independent,
the tenant could maintain his cross-claim for damages although he had not paid
the rent. Conversely, the landlord can sue for rent although he has not repaired.
But again, that does not touch the point in Taylor v Beal.
▪
I do not think this is bound up with technical rules of set-off. It is an ancient
common law right. I therefore declare that so far as the repairs are within the
express or implied covenants of the lessor the third and fourth defendants are
entitled to recoup themselves out of future rents and defend any action for
payment thereof. It does not follow however that the full amount expended by
the third and fourth defendants on such repairs can properly be treated as
payment of rent. It is a question of fact in every case whether and to what extent
the expenditure was proper.
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9: Covenant against Assignment or Sub-Letting
•
This covenant prohibits the tenant from assigning, subletting or otherwise parting with
possession of the demised premised with absolutely or without the consent of the
landlord. Where no such covenant exists in a lease, a tenant is free to assign, sublet or
otherwise part with possession of the demised premises.
•
This kind of covenant is construed strictly against the landlord. A covenant against
assigning is not broken by a sub-letting or vice versa: Russell v Beecham [1942]1 K.B.
525.
•
A covenant not to sub-let premises is not breached by a sub-letting of the part of the
premises UNLESS the words “or any part thereof” is included in the clause.
•
A covenant in this regard may be:
o absolute;
o qualified;
o qualified with a proviso
Construction of this Covenant
•
Absolute
o “The tenant for himself and his assigns covenants with the landlord not to assign or
underlet or part with the possession of the demised premises.”
o “The tenant for himself and his assigns covenants with the landlord not to assign or
underlet or part with the possession of the demised premises or any part thereof”
The absolute covenant prohibits any parting with possession of the demised
premises in any circumstances.
•
Qualified
o “The tenant for himself and his assigns covenants with the landlord not to assign or
underlet or part with the possession of the demised premises or any part thereof
without the written consent of the Landlord”
o “Not to assign underlet or part with the possession of the demised premises or any
part thereof without the prior written consent of the Landlady, such consent
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however not to be unreasonably withheld or delayed in the case of a responsible or
reliable Assignee”
o The qualified covenant prohibits the tenant’s parting with possession of the demised
premises without the consent of the landlord.
•
Qualified with a proviso
o “The tenant for himself and his assigns covenants with the landlord not to assign or
underlet or part with the possession of the demised premises or any part thereof
without the written consent of the Landlord, such consent not to be unreasonably
withheld”
o Such a qualified covenant may also be subject to an express proviso that the landlord
will not unreasonably withhold his consent to an assignment or sub-letting.
•
Reasonableness of Landlord’s refusal of consent
o “The question whether a particular act is reasonable or unreasonable is obviously
one that cannot be determined on abstract considerations. An act must be regarded
as reasonable or unreasonable in reference to the circumstances under which it is
committed, and when the question arises on the construction of a contract the
outstanding circumstance to be considered is the nature of the contract to be
construed and the relation between the parties resulting from it.”
Landlord’s Remedies
•
Right of forfeiture (where reserved by the lease)
•
Damages;
•
Barrow v Isaacs [1891] 1 QB 417
o In a lease for years the lessees covenanted not to underlet the premises, or any part
thereof, without the consent in writing of the lessor, which consent the lessor agreed
should not be arbitrarily withheld in the case of a respectable or responsible person,
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and power to re-enter was given to the lessor in case the lessees did not well and
truly observe and perform their covenants. The lessees underlet part of the premises
without obtaining or asking for the lessor's consent. The under lease was prepared
by their solicitor, who omitted to look at the head lease, and forgot that it contained
the covenant not to underlet without consent. Both the lessees and their underlessees were respectable and responsible persons, and no injury was done, or likely
to be done, to the lessor by reason of the underlease, nor could he have had any
valid objection to it if his consent had been asked. In an action by the lessor to
recover possession of the premises for breach of the covenant: Held, that the
omission to ask the lessor's consent was not a mistake in respect of which the Court
would grant the lessees equitable relief against forfeiture for breach of the covenant,
and therefore that the plaintiff was entitled to succeed in the action. The court found
that the premises were let to a person of utmost respectability and it was impossible
in the view of the court to conceive that any reasonable man could have made any
objection to the subtenant. However, there was nevertheless a breach of the
covenant which entitled the landlord to exercise his right of re-entry.
o Kay LJ: Even if the intended subtenants were respectable and responsible persons,
it was necessary for the tenant to ask for consent as the prospective subtenant might
desire to carry on a trade which would be injurious to the plaintiff landlord, or which
might depreciate the demised property or might use it for some purpose which
would altogether change the character of the premises.
•
Home Property v Walker [1947] 2 All ER 789
o Action for possession of a shop on the ground that the lease had been forfeited for
breach of covenant in underletting without the landlords’ consent. The tenants
admitted the breach of covenant, but counterclaimed for relief, on the ground that
they had been obliged to grant a short underlease of the premises to a government
department to avert the threat of requisitioning. Lord Goddard CJ, held that s
146(2), which gives the court a discretionary power to grant relief from forfeiture for
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breach of covenant, applied to a breach of a covenant against underletting without
consent and that this was an appropriate case in which to grant relief. The Law of
Property Act, 1925, s 146(2), which gives the court power to grant relief from
forfeiture for breach of covenant, applies to a breach of covenant against assigning
or underletting without consent.
o Lord Goddard CJ: This is an action to recover possession of property in High Street,
Hounslow, on the ground that a forfeiture of the lease has been incurred by reason
of a breach of covenant. The breach alleged is that the tenants have underlet the
premises and granted possession to the Commissioners of Works without obtaining
the consent of the landlords. There was a covenant in the lease against assigning,
underletting or parting with the possession of the premises or any part thereof
without the previous written licence of the landlords. There was also a proviso for
forfeiture in the event of breach by the tenants of any of the covenants, and,
therefore, it is admitted that prima facie there has been a breach of covenant and a
forfeiture has been incurred. Strictly speaking, I could give judgment for possession
unless I saw fit to grant relief against a forfeiture. It is submitted for the landlords
that the court has no power to grant relief against forfeiture in this case, because the
tenants did not ask for permission. Against that, it is said that the court can grant
relief under s 146(2) of the Law of Property Act, 1925, which was passed after Barrow
v Isaacs & Son and Eastern Telegraph Co v Dent were decided. These cases were
certainly the law until the Law of Property Act, 1925, was passed.
•
Lewis v Pegge [1914] 1 Ch. 782
o A limited company demised a residential flat for a term of years, and the lessee
covenanted not to assign or underlet the premises without the consent of the
company, such consent not to be withheld in the case of a respectable and
responsible person. On April 3, 1913, the lessee applied to the secretary of the
company for leave to sub-let to H., a respectable and responsible person, and asked
to know by April 14, as H. wanted possession on that day. The secretary forgot to
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communicate with his directors. On April 14 the lessee, not having received a reply,
sub-let to H. and gave him possession. In an action by the company to recover
possession for breach of the covenant: - Held, that there had been no breach of the
covenant, for that the consent of the company was a pure formality and had been
withheld. Held, also, that the period from April 3 to 14 was under the circumstances
a reasonable time to wait for a reply.
Reasonableness of Refusal of Consent
•
The standard applied to determine whether the landlord was or was not reasonable in
refusing consent is an objective one, i.e., that of a reasonable landlord having regard to
the existing circumstances and the facts known to the landlord at the time when the
request for consent was being considered, and not when the head lease was granted.
•
If the landlord is required to give reasons for the refusal of consent, he cannot in
subsequent proceedings to test the reasonableness of his refusal, rely on reasons which
affected his decision but which were not previously given to the tenant.
•
The purpose of requiring the landlord’s consent is to protect the landlord from having
his property used or occupied in an objectionable manner or by an undesirable tenant
or assignee. The ground for a landlord’s refusal should therefore relate to something
affecting the subject matter of the landlord and tenant relationship. It should not be
something which is wholly extraneous and not connected with the subject-matter of
the relationship.
•
In considering whether to grant or refuse consent, the landlord need only consider his
own interests. The interests of the tenant should however, be weighed against the
landlord’s interests so as to avoid a disproportion between the benefit of the landlord
and the detriment to the tenant which would make the withholding of consent
unreasonable.
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•
Houlder Bros. & Co. Ltd v Gibbs [1925] 1 Ch. 575 p.585 Warrington LJ:
o In a lease for years the lessees covenanted not to assign the premises, or any part
thereof, without the consent in writing of the lessor, such consent not to be withheld
unreasonably in the case of a respectable and responsible person or corporation. The
lessees agreed to assign, subject to the consent of the lessor, to R., Ld., who were in
possession of adjoining premises on a yearly tenancy from the same lessor. The
lessor refused to give his consent to the assignment on the ground that he would
lose good tenants of the adjoining premises, and would have great difficulty in
reletting them. Tomlin J. held that the licence had been unreasonably withheld, and
that the lessees were free to assign. On appeal: Held, that the refusal of the licence
was unreasonable, as the reason given for it was one which had no reference either
to the personality of the proposed assignee or to the subject matter of the lease.
o The first question that arises is: What is the inference to be drawn as to the intention
of the parties in inserting in the lease a provision of this kind? What was the danger
which the lessor contemplated, and against which the lessee was content to allow
the lessor to protect himself? It must, of course, be borne in mind that without this
covenant the lessee would have had a free right to assign to whom he pleased the
premises comprised in the lease, and the covenant, therefore, was inserted first as a
protection of the lessor, and, secondly, the proviso was attached to it in order to
prevent the lessor making an unreasonable use of that protection.
o Now, what is to be inferred from what may be treated as having been in the
contemplation of the parties when the contract was made? I think it must be, as I
have said, that it was intended to protect the lessor as against a lessee, who, although
respectable and responsible, might well be reasonably objectionable in other ways,
and, secondly, from the point of view of the property, to prevent the lessor from
having to accept a lessee whose user of the property might again be reasonably
objectionable. The user of the property to be reasonably objectionable need not
necessarily be objectionable to the lessor as lessor of that particular property. The
user of the property might damage the lessor in other ways, and if it did, then an
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objection to that user would be reasonable; but whichever way it is looked at, I think
you must find in the objection something which connects it either with the
personality of the intended assignee suggested as the new tenant of the property, or
with the user which he is likely to make of the property to be assigned to him.
•
Bickel v Duke of Westminster [1976] 3 All ER 80 p.804-805 Lord Denning MR
o A body of trustees were the lessees of several houses on a large estate. The leases,
which had been granted in 1947, were long leases at low rents within the Leasehold
Reform Act 1967, but the lessees held them only as investments and did not occupy
any of the houses. Accordingly, they were not entitled to acquire the freeholds
under the provisions of the 1967 Act. The lessees had sublet the houses to sublessees
who occupied them, but the rents under the sub-tenancies were not low rents within
the 1967 Act. Each lease contained a covenant that the lessees would not assign the
premises ‘without the previous written licence of the [lessors] provided that such
licence shall not be unreasonably withheld’. The lessees applied to the lessors for
permission to assign one of the leases to the sublessee for the seven years’ unexpired
term of the lease. If the lease were assigned, the sublessee would be entitled, after
the lapse of five years, to acquire the freehold under the 1967 Act. The lessors
refused to give their consent to the assignment because they wanted to keep the
estate in their hands in order to manage and develop it in the best possible way; if
they were compelled to sell the freeholds under the 1967 Act, they would suffer
financial loss. The lessors were willing to pay to the lessees for the surrender of the
lease a sum equivalent to that offered by the sublessee to the lessees for the
assignment. The lessees applied for a declaration that the lessors had unreasonably
withheld their consent to the proposed assignment. Held – The declaration would
be refused for the following reasons—
o (per Lord Denning MR) In determining whether a refusal of consent was
unreasonable the court had to consider all the circumstances of the particular case;
since such circumstances were infinitely various it was impossible to formulate strict
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rules as to how a landlord should exercise his power of withholding consent. In the
circumstances the lessors were not acting unreasonably since (a) their plans to
develop the estate in the best possible way would be impeded if one house after
another were bought by sitting tenants and they would suffer financial loss if
compelled to sell the freehold under the 1967 Act;(b) it was a matter of indifference
to the lessees whether they surrendered the lease to the lessors or assigned it to the
sublessee; and (c) the sublessee would be in no worse position in consequence of
the lessors’ refusal of consent than she had been when she took the sublease.
o The words of the contract are perfectly clear English words: ‘such licence shall not
be unreasonably withheld’. When those words come to be applied in any particular
case, I do not think the court can, or should, determine by strict rules the grounds
on which a landlord may, or may not, reasonably refuse his consent. He is not
limited by the contract to any particular grounds. Nor should the courts limit him.
Not even under the guise of construing the words. The landlord has to exercise his
judgment in all sorts of circumstances. It is impossible for him, or for the courts, to
envisage them all. When this lease was granted in 1947 no one could have foreseen
that 20 years later Parliament would give a tenant a right to buy up the freehold.
Seeing that the circumstances are infinitely various, it is impossible to formulate
strict rules as to how a landlord should exercise his power of refusal. The utmost
that the courts can do is to give guidance to those who have to consider the problem.
As one decision follows another, people will get to know the likely result in any given
set of circumstances. But no one decision will be a binding precedent as a strict rule
of law. The reasons given by the judges are to be treated as propositions of good
sense—in relation to the particular case—rather than propositions of law applicable
to all cases. It is rather like the cases where a statute gives the court a discretion.
THE TEST THAT THE LAW LAYS DOWN WHAT CONSTITUTES REPAIR AND
RENEWAL, KNOW THIS FOR EXAMS.
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•
Concept of the User Covenant versus the Repair Covenant. The user covenant is one of
those that if it is not expressed it would be implied.
•
Fitness for a particular purpose that the premises have been leased for versus the
standard for repair, the distinction to be made is that disrepair does not render premises
unfit for human habitation, Hamblin v Browne, is not, Wooding.
•
Covenant to repair where it is entered into by the T would usually appear in a long-term
fixed term lease. You would more commonly find this in a long, fixed term. The
warranty where the L in respect of only furnished premises, would relate to
circumstances where there is short lease, in that case unfitness to human habitation
would be used, following the guidelines laid down by CJ Wooding. That lack of repairs
refers to the generality of the demised premises, not only one place. Must relate to the
overall condition of the building, the soundness and structure of the building.
•
Pay attention to the duration of the lease and total duration, in deciding whether you
are going to discuss the covenant to repair by the T or the L covenant up keeping the
unfitness of the building.
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Unit 3 – Distress
Upon completion of this unit, students should be able to:
•
describe the remedy of distress.
•
identify the circumstances in which the right to distrain arises.
•
state what goods may/may not be distrained upon.
•
describe the procedure involved in the levying of distress.
•
describe the procedures following distress which allow the landlord to realise the value
of the goods seized in a distress proceeding.
•
describe rescue and Poundbreach.
•
identify when a distress is illegal, irregular or excessive and the remedies available
persons aggrieved by such.
•
describe the remedy of replevin.
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I: MEANING
•
This is an old common law remedy whereby a Landlord without taking proceedings in
Court could seize and retain as a
•
pledge goods and chattels found on the demised premises to compel the tenant to pay
arrears of rent.
•
A pledge is the transfer of the possession (but not ownership) of a chattel as security for
the payment of a debt or performance of an obligation. On default being made the
chattel may be sold.
•
The right to distrain is prima facie limited to goods found on the premises out of which
the rent issues. However, statutory provisions in T&T provide that where the tenant has
fraudulently and clandestinely removed his goods from the demised premises in order
to prevent the landlord from distraining on them, they may be seized by the landlord
wherever they are found (s. 19, Landlord & Tenant Ordinance).
•
The starting point is that the tenant has a right to exclusive possession; very limited and
circumscribed instances where the landlord’s right supersedes that of the tenant.
Right to Distrain
•
This common law right is expressly provided for in Trinidad and Tobago. The right
allows a landlord to enter upon the demised premises and seize and take away goods
and impound them as a pledge for the payment of any arrears of rent due to him.
•
Section 8 of the Landlord and Tenant Ordinance Ch. 27 No 16: Every person having
any rent in arrear and due to him upon any grant, lease, demise or contract whatsoever,
shall have the same remedy for distress for the recovery of such rent as is given by the
law of England in the like case. (At the relevant time).
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II: REQUISITES TO THE RIGHT TO DISTRAIN
1. The relationship of landlord and tenant must exist at the time of distress; however,
distress cannot be levied on a tenant at sufferance or a licencee because they do not
hold under a demise.
2. The relationship of Landlord and Tenant must exist when the rent falls due.
3. The relationship must exist at the time of distress; however, S6 Landlord and Tenant
Act 1709 gives the landlord the right to distrain for arrears within six months after the
determination of the lease, during the landlord's title and during the possession of the
tenant from whom the arrears became due.
•
N.B. "Ended or determined" does not include determination by forfeiture. Similar
legislation has been enacted in various territories in the Caribbean.
•
Landlord and Tenant Ordinance Ch. 27 No. 16, Section 16 : It shall and may be
lawful for any person having rent in arrear, or due upon any lease for life or lives, or
for years or at will, ended or determined, to distrain for such arrears after the
determination of such lease, in the same manner as he might have done if such lease
had not been ended or determined provided that such distress be made within 6
months after the determination of such a lease, and during the continuation of such
landlord’s title or interest and during the possession of the tenant from whom such
arrears became due.
4. He can only distrain to recover `rent' within the common law.
5. Rent must be in arrears. It will not be in arrear until midnight on the day on which it
falls due. If rent is payable in advance, it will be in arrear as soon as the period in respect
of which it is payable begins.
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Time for Distress
•
Distress must be levied between sunset and sunrise and not on a Sunday;
•
Aldenburgh v Peaple (1834) 6 C & P 212
o Here, the plaintiff rented a house at Pentonville of the defendant, as tenant from
year to year and at about 11 o'clock on the night of the 13th of July, 1833, the
defendant, seeing the plaintiff's son go into the house and leave the key in the door,
took possession of the key, and kept the plaintiff out of the house, alleging that he
took the goods as a distress for rent. The plaintiff had, in the month of March, 1833,
sent the defendant a written notice to quit, signed by her, but that notice did not
expire with the year of the tenancy, and had not been acted on by the defendant.
Parke, J.: “The landlord might, if he had chosen, have treated this irregular notice to
quit as a surrender, as a term of this kind may be surrendered by a note in writing,
but he has not done so. With respect to the taking of the goods, that cannot be
justified as for a distress, because no one has a right to make a distress after dark.”
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III: WHAT MAY BE DISTRAINED
•
`Prima facie’ at common law, all personalty/chattels found on the demised premises
may be distrained upon:
o Cox v Boyce (1960) 2 WIR 19
▪
In this case, the appellant rented to the father of the respondent certain premises
subsequently used by the respondent as a shop where general foodstuffs and
liquor were sold. The goods in the shop were the property of the respondent.
The licence for the sale of liquor was in his name. The father paid the rent to the
landlord, the appellant. The appellant caused a distress to be levied on the goods
in the shop to satisfy arrears of rent due to him. The respondent claimed the
goods as his property as exempt from distress in proceedings instituted for that
purpose before a magistrate under the provisions of the Landlord and Tenant
Act, 1897 [B].
▪
The magistrate allowed the claim and ordered the goods to be returned to the
respondent as it held that the son was not a tenant or subtenant of the defendant,
and found that the articles levied on were the property of the appellant.
▪
On appeal, it was held that the goods were not exempt from distress for rent due
to the landlord by the tenant.
▪
Field AG CJ: “The finding of the magistrate that the complainant was not a tenant
or subtenant is not a finding of fact. At least it is one of mixed fact and law. It is
a conclusion at which the magistrate arrived without setting out any facts on
which he so found. In these circumstances this court must look at the evidence
and ascertain such facts as are relevant and apply the law to these facts. From
the evidence of the father and son it is clear that the father negotiated for the
rent of the premises from Cox. The business was carried on by the son. The goods
were bought by him. The liquor licence was in his name. He was put in exclusive
possession of the premises by his father, the tenant of Cox. It seems clear
therefore that the legal relationship of the son in respect of these premises is one
as tenant of his father. He could hardly be considered a stranger and certainly
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not a lodger. The burden of proving that the goods are exempt from distress is
on the claimant and he must satisfy the court that he is within certain
exemptions.
▪
Generally, a landlord can seize and distrain for arrears of rent all goods and
chattels found on the premises out of which the rent issues. But certain
exceptions have been engrafted upon the general rules both by common law and
by statute. Section 21 of the Landlord and Tenant Act 1987 [B], exempts the goods
of strangers. For instance, if articles are left to be repaired or to be manufactured
then on grounds of public policy such goods are exempt. Wearing apparel and
money and tools of trade to a certain value are in certain cases exempt. So also,
are the goods of a lodger. The evidence fails to satisfy us that the goods distrained
on in this case fall in any of the categories which are excepted from the right of
distress and sale which a landlord has at common law or by statute.”
•
However, both the common law and statute have clothed some chattels with a privilege
that may be ‘absolute’ or ‘conditional’. The effect is that such goods are not in fact
distrainable where the privilege is absolute.
•
Where goods are conditionally privileged, they can only be distrained upon where there
is no other sufficient distress on the premises. Proof of the inadequacy of other distress
is the burden of a distrainor, in an action by the tenant for wrongful distress.
Absolutely Privileged Goods
•
These items are completely exempt from seizure.
•
Simpson v Hartopp (1558-1774) All ER Rep 453 per Wills J @ 454
o The plaintiff declared against the defendant for that on 20 October 1741, he was
possessed of a frame for the knitting weaving and making of stockings, valued 20
pounds, as of his own proper goods, and being so possessed he lost the same. On 18
August 1742, it came into the hands of the defendant, who knowing the same to be
the goods of the plaintiff on August 19 converted it to his own use; damage 30
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pounds. The defendant pleaded not guilty. The jury found that the plaintiff, on 27
March 1741, was possessed of a frame for knitting weaving and making stockings,
value 8 pounds, as his own proper goods. On that day he let the frame to John
Armstrong at the weekly rent of 9d, and so from week to week as long as they the
plaintiff and John Armstrong should please; by virtue of which letting John
Armstrong was possessed of the frame at that rent until the time after mentioned,
when the frame was seized as a distress for rent by the defendant. John Armstrong
was by trade a stocking-weaver, and used the stocking-frame as an instrument of his
trade, and continued the use thereof, and his apprentice was using it at the time
thereinafter mentioned, when the same was seized by the defendant as a distress for
rent. The issue was whether the stocking-frame was by law distrainable for the
arrears of rent or not. It was held that the stocking-frame, the apprentice being
actually weaving a stocking upon it at the time when it was distrained, was not
distrainable for rent, even though there were no other distress on the premises; and,
therefore, judgment must be for the plaintiff.
o Willes J: There are five sorts of things which at common law were not distrainable:
1. Things annexed to the freehold;
2. Things delivered to a person exercising a public trade to be carried, wrought,
worked up, or managed in the way of his trade or employ;
3. Cocks or sheaves of corn;
4. Beasts of the plough and instruments of husbandry;
5. The instruments of a man's trade or possession.
o The first three sorts were absolutely free from distress, and could not be distrained,
even though there were no other goods besides.
o The two last are only exempt sub modo, that is upon a supposition that there is
sufficient distress besides.
o Things annexed to the freehold as furnaces, millstones, chimney-pieces, and the
like, cannot be distrained, because they cannot be taken away without doing damage
to the freehold, which the law will not allow. Things sent or delivered to a person
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exercising a trade, to be carried, wrought or manufactured in the way of his trade,
as a horse in a smith's shop, materials sent to a weaver, or cloth to a tailor to be
made up, are privileged for the sake of trade and commerce, which could not he
carried on if such things under these circumstances could be distrained for rent due
from the person in whose custody they are left.
•
Crossley v Lee (1908) 1 KB 56 per Phillimore J @ p.70
o In this case, a gas engine was let out by the plaintiffs on hire under an agreement in
writing which provided for monthly payments, and that the engine should remain
the property of the plaintiffs until the hirer had exercised the option of purchase
given by the agreement, and should be removable by the plaintiffs on the failure of
the hirer to pay any installment. The engine was affixed to the floor of premises, of
which the hirer was the defendant's tenant, by bolts and screws, and was used by
the hirer for the purposes of his trade. The engine was seized by the defendant under
a distress for rent due from the hirer and sold: The issue was whether this engine is
a fixture in either sense, namely, an irremovable fixture, or a fixture severable by the
tenant. It was held that the engine had become a fixture, and was therefore not
distrainable.
o Phillimore J.: From my point of view there are only two classes of fixtures, putting
aside certain special things like gas fittings, which are provided for under a
particular Act of Parliament. The two classes are,
1. first, those fixtures, which when once implanted in the soil, become part of the
soil and are irremovable except with the consent of the landlord; and,
2. secondly, those fixtures which a tenant is entitled to sever during his tenancy,
but which, until they are severed, form part of the freehold, and, if the tenant
does not sever them, remain so for all time.
o It was argued that there is a third class of articles, which may be called fittings, and
which are fixtures for some purposes and not for others—that is to say, they are
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fixtures which pass under a conveyance or at any rate a mortgage of the freehold,
but for all other purposes remain simple chattels.
o I agree that it is possible in law to conceive of articles which pass on a conveyance
or mortgage of the freehold, but which do not form part of the freehold. For
example, I believe that formerly in the West Indies slaves passed with a mortgage of
the freehold. But with regard to fixtures, when there is a conveyance or mortgage of
the land, then, as was expressed in Holland v. Hodgson, the fixtures are
transferred, not as fixtures, but as part of the land; subject to the power of severance
by the tenant which exists in the case of chattels which have been attached to the
land, they are part of the freehold, and if so, they are not distrainable.
•
Secretary of State for War v Wynne (1905) 2 KB 845 per Lord Alverstone, C.J. @ 849
o The action was brought by the Secretary of State for War to recover from the
defendants’ damages for illegally distraining a horse, the property of the Crown. By
a letter dated October 24, 1902, the War Office authorities announced their
intention of giving a certain number of surplus horses to each officer commanding
a yeomanry regiment, which horses each officer might lend to members of the
yeomanry on the terms contained in the letter. In accordance with that letter certain
horses were distributed in the district, and amongst others the horse in question
was distributed to one H. G. Tibble, who is a member of the yeomanry, and was
taken to his farm by him, and kept under the terms of the letter. The farm to which
the horse was taken was North Street Farm, the property of the defendant C. A.
Wynne, and in the occupation of E. G. Tibble as tenant to the defendant Wynne. On
August 7, 1904, there was a sum of 74l. due in respect of rent from Tibble to the
defendant C. A. Wynne, and the defendant Arnold, by a distress warrant dated
August 7, 1904, authorized the defendant Tanner to distrain upon the goods,
chattels, and effects on the farm for that amount of rent. The defendant Tanner
accordingly levied a distress on the farm under the warrant on August 8, and under
that distress seized, amongst other things, the horse in question on the farm. All the
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usual steps were duly and properly taken by the bailiff, and it is admitted that as
between the tenant Tibble and the defendants the distress was regular in every way.
On September 4 a request was made by Major Holt, commanding the squadron of
yeomanry in the district, directed to the defendant Tanner, to surrender the horse
as being a Government horse. This the defendant Tanner refused to do. On
September 26 Captain Granville, the yeomanry adjutant, made a verbal claim upon
the defendant Arnold for the horse, which was refused to be given up. On September
28, after due notice, the horse was sold by the instructions of the defendant Tanner,
acting as bailiff, and realized the sum of 9l. 10s. Further correspondence between
the yeomanry officials and the defendants Tanner and Arnold ensued, and on
January 31, 1905, the Secretary of State for War issued the plaint in this action.
o On appeal, it was held that judgment ought to be for the plaintiff.
o Lord Alverstone CJ: “It is, in my view, not sufficient that a mere claim or demand for
the delivery of the goods seized should be made by the Crown. There must, in my
opinion, be something equivalent to the extent—that is, formal legal process of
some kind actually commenced.” It is somewhat difficult to see, when Crown goods
are upon a man's property and the Crown claims them, what legal process could be
commenced except an action founded on the Crown's claim to the goods, as was the
action in the present case. There is no necessity for a writ of extent; indeed, a writ
of extent would not be applicable to such a case. The authority upon which the
county court judge seems to have relied is only useful for the purpose of shewing
that the title of the Crown which is founded upon proceedings takes precedence of
the title of the landlord who would otherwise be entitled to his remedy by distress.
But there is, in my opinion, a much broader principle involved, namely, that Crown
property never was, according to the law of England, subject to distress.
o The deduction drawn in the passage in Woodfall's Landlord and Tenant, 17th ed. p.
496, seems to me a logical conclusion. The passage is: “There is no modern decision
as to Crown property; but it is laid down in the old books that a man cannot distrain
during the possession of the Crown; and it would seem to follow that Crown
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property, even though the Crown be not tenant, is privileged on premises demised
to a subject.” If, even when the Crown is tenant and owes the rent, Crown property
cannot be taken in distress, it would seem a strange thing that such property could
be taken for somebody else's rent.
•
Davies v Powell (1737) Willes 46
o Deer in an enclosed ground may be distrained for rent. This depends on the park in
which they are kept.
•
Lyons v Elliot (1876) 1 QBD 210
o In this case, a sale by auction of V.'s goods on the premises of V. having been
advertised, plaintiff delivered some plate to the auctioneer to be sold along with V.'s
goods. The auctioneer placed the plate on. V.'s premises, where it was distrained
during the auction by the landlord for rent in arrears:
o It was held that the plate was not privileged; and the distress was valid.
o Blackburn, J: “No doubt the general rule at common law was that whatever was
found on the demised premises, whether belonging to a stranger or not, might be
seized by the landlord and held as a distress till the rent was paid or the service
performed. This state of the law produced no harm, because at common law the
landlord not being able to sell the distress, he generally gave up the goods as soon
as he found they were not the tenant's, as his continuing to hold them would not
induce the tenant to pay.
o The ground of the privilege is public policy for the benefit of trade; and the privilege
is given to the person carrying on the trade, that is, where goods are entrusted to a
person in order that he may exercise his trade upon them, they should be privileged
from distress at the suit of the landlord of the premises where the trade is exercised.
The case of goods in the hands of a carrier, or of goods going to market, is
exceptional; the carrier or person taking the goods to market must rest somewhere;
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in such cases the goods are privileged, though in a private house, not the person's
own; and it is very similar to the privilege attaching to goods of a traveler at an inn.
o The principle that when a person occupies certain premises and carries on a public
trade there, goods which are brought to those premises for the purposes of that trade
are privileged. But when the person exercises the trade not on his own premises, are
the goods on those premises privileged? I think not.
o In the present case it is immaterial whether the goods advertised to be sold were the
auctioneer's or the tenant's, they were not on the auctioneer's premises, but on the
tenant's, and the advertisement was of the sale of the tenant's goods. Would that
privilege the goods of the auctioneer or tenant? I think that there is no such
privilege. It would be strange if a tenant could privilege his goods from distress by
merely calling in and employing an auctioneer to sell them on the premises.
Therefore, I think the goods of the tenant would not be privileged. The plaintiff
himself asked the auctioneer to put this plate of his into the sale, and the auctioneer
accordingly sent the plate from his own premises to V's and put them along with V's
goods. They were therefore no more privileged than V's goods.”
Conditionally Privileged Goods (Qualified Privilege)
•
The landlord may remove qualified items if he has not reached the necessary value after
seizing all other goods and it appears that there is nothing else available for seizure at
the property. The landlord must genuinely believe there was nothing else available, as
he could be sued otherwise.
•
Qualified privilege mainly concerns tools of the trade, in excess of those already
protected by absolute privilege.
•
Gorton v Falkner (1792) 4 Term Rep 565
o Implements of trade may be distrained for rent, if they be not in actual use at the
time, and if there be no other sufficient distress on the premises.
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o Whether goods be the property of the tenant or a stranger is perfectly immaterial,
provided they be on the premises, and be not privileged by law from a distress
(Buller J).
•
NB: The Landlord and Tenant Ordinance, Sections 27-29, provide that a subtenant
or lodger or any other person not being a tenant of the premises and not having a
beneficial interest in the tenancy may serve notice on the landlord declaring that:
•
i.
The tenant has no property in the goods;
ii.
The goods are not goods exempted by statute;
iii.
So much rent is due from him to the tenant, if any;
iv.
Future instalments of rent will become due on stated days; and
v.
He will pay such rent to the landlord
With this notice, the third party must send an inventory of his goods. If the landlord
levies distress on the third party’s goods after receipt of this notice and inventory, he
will be guilty of illegal distress and the third party may apply to the court for replevin.
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IV: PLACE WHERE DISTRESS MAY BE MADE
•
The general rule is that distress may be levied on the demised premises only, on all
goods found there. Exceptions to this general rule are:
1. By other agreement with the tenant, the landlord may distrain on other lands.
2. If the tenant in order to avoid distress drives his cattle or stock off the demised
premises, the landlord may there and then pursue and seize them in any place they
are found.
3. Goods fraudulently or clandestinely removed from the demised premises to avoid
distress may within 31 days be distrained wherever they are found provided that they
have not previously been sold bona fide and for value to a person not privy to the
fraud: ss. 1, 2 of the Distress for Rent Act, 1737 (U.K.) enacted in most of the W.I.
territories:
o Landlord and Tenant Ordinance, Section 15: In case any tenant, lessee for life
or lives, term of years, at will or sufferance, of any land upon the demise or
holding where if any rent is or shall be reserved, due, or made payable, shall
fraudulently or clandestinely convey away or carry off or from such demised
premises his goods or chattels, with intent to prevent the landlord or lessor from
distraining the same for arrears of rent so reserved, due, or made payable as
aforesaid, it shall and may be lawful to and for such lessor or landlord, or any
person or persons by him for that purpose lawfully empowered, within the space
of thirty days next ensuing such conveying away or carrying off such goods or
chattels as aforesaid, to take and seize such goods and chattels, wherever the
same shall be found, as a distress for the said arrears of such rent, and the same
to sell or otherwise dispose of, and to distribute the money arising by such sale,
in such manner as if the said goods and chattels had actually been distrained by
such lessor or landlord in and upon such demised premises for such arrears of
rent, any law, custom, or usage to the contrary in anywise notwithstanding:
Provided that nothing in this Ordinance contained shall extend or be construed
to empower such lessor or landlord to take or seize any goods or chattels as a
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distress for arrears of rent, which shall have been sold bona fide and for a
valuable consideration before such seizure made, to any person or persons not
privy to such fraud as aforesaid, anything herein contained to the contrary
notwithstanding.
•
Note the following cases on the provision:
•
Rand v Vaughn (1835) 1 Bing. (N.C.) 768
o This was an action of trespass against the Defendants, in bar of which, they both
pleaded a joint plea of not guilty. The Defendant Duffield then pleaded specially,
as bailiff of Vaughan the landlord, as justification for a distress. The plea stated
that the rent for which the distress was made, became due on the 25th of March
1834; that the goods of the Plaintiff were fraudulently and clandestinely conveyed
away to prevent the distress; and that the distress was taken within thirty days
next ensuing such carrying away of the goods.
o Tindal. J.: The short question raised by the pleadings is, whether the statute
applies to cases where the tenant removes his goods fraudulently and
clandestinely before the rent becomes due; and we are of opinion that such case
is not provided for by the statute.
o By the common law, the distress for rent was necessarily made upon some part
of the demised premises, otherwise the tenant might rescue the distress, or bring
an action of trespass. And it was only in case the landlord coming to distrain saw
the cattle on the premises, and the tenant to prevent the distress drove them off
the premises, that the landlord could justify freshly following and distraining
them.
o And the statutes appear to have been passed with the view of removing such
difficulty in the way of the landlord’s remedy in the case of a fraudulent or
clandestine removal of the tenant's goods off the premises. For it expressly
empowers the landlord “to take and seize such goods, wherever the same shall
be found, as a distress for the said arrear of rent; and the same to sell and
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otherwise dispose of in such manner as if the said goods had been actually
distrained by such landlord in and upon such premises for such arrears of rent.”
o It is the place, therefore, not the time of the distress, to which the statute intends
to apply the remedy; and, indeed, it is obvious, that if the construction
contended for by the Defendant is adopted, as the landlord may, after five days
next after the distress, sell the goods and pay himself the rent, he might do so in
many cases before the rent became due, which never could have been intended.
Looking to the intention of the act therefore, and the great uncertainty which
would arise if a removal of the goods at any time before the rent became due
would be sufficient to let in the provisions of the act; for if at any time, how long
before, would be the question; we think the present distress was illegal.
o A landlord cannot distrain goods fraudulently and clandestinely removed from
the tenant’s premises before the rent becomes due.
•
Thornton v Adams (1816) 5 M. & S. 38
o In trespass for breaking and entering the plaintiff's warehouse, and taking and
distraining his goods, the defendants justified under a demise from the
defendant Adams to one Neilson, of a counting house, at a yearly rent of 501.
payable quarterly, and because a quarter's rent was in arrears on the 25th of
March 1815, and the said Neilson fraudulently and clandestinely carried off the
goods from the premises, to prevent the defendant Adams from distraining, and
conveyed the same to the plaintiff's warehouse, without leaving any other goods
on the premises, therefore the defendants, within 30 days, entered the said
warehouse, the door thereof being open, and took the said goods. And upon
special demurrer, assigning for cause, that it was not alleged that the said goods
were the property of Neilson, but on the contrary it was admitted that they were
the property of the plaintiff, and joinder in demurrer, it was argued that the plea
was ill. For the statute which empowers landlords to distrain and sell goods
fraudulently or clandestinely carried off the premises within 30 days, plainly
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extends to the tenant's goods only, and not to the goods of a stranger; for the
statute says, “in case any tenant shall fraudulently or clandestinely carry off his
or her goods;” and, therefore, though by the common law the landlord may
distrain upon the premises, for rent arrears, without regard to whom the
property belongs, yet, here, in order to give effect to this statutory remedy, the
plea ought to show that the goods were the goods of Neilson for otherwise the
defendants are not justified in following them. But the declaration alleges that
they were the plaintiff's goods, and the plea is silent as to the property.
o Lord Ellenborough C.J.: I cannot say that the terms fraudulently and
clandestinely supply, by necessary intendment, the allegation that these goods
were the goods of the tenant. This plea seems to have been framed upon a
supposition that to whomsoever the goods might belong, the tenant could not
lawfully remove them; whereas the language of the Act of Parliament is explicit;
it says his or her goods; and there seems to be no reason for supposing that it
meant any other goods. Bayley J: The plea must be taken most strongly against
the pleader; and it is not pleaded that the property was Neilson's at the time of
the removal. It is argued that it must have been his, because the removal is
alleged to be fraudulent and clandestine, but I think this by no means follows,
for if Neilson removed the goods clandestinely, proof of that would have been
sufficient to support the plea; and it is plain that he might have removed them
clandestinely, although they were not his.
•
Opperman v Smith (1824) 2 Dow. & Ry. (K.B.) 33
o Where a tenant openly and in the face of day, and with notice to his landlord,
removed his goods without leaving sufficient on the premises to satisfy the rent
then due, and the landlord followed and distrained the goods: Held although the
removal might not be clandestine, yet it was fraudulent, and the landlord was
justified under the statute.
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•
White v Brown (1950) 13 WIR 523
o The plaintiff appellant rented a room from the defendant respondent on a
monthly tenancy, rent being due on the 28th of each month. The defendant
served the plaintiff notice to quit “on 28 July 1965, next or at the end of the month
of your tenancy which will expire next after the end of 28 August 1965 – month
from the date of the service of this notice on you.” The plaintiff continued to
occupy the room and the defendant filed ejectment proceedings against him.
The plaintiff having been served with the summons, moved to new premises on
either 24 or 25 September 1965, and handed the defendant the key for the room
that afternoon. The defendant caused a landlord bailiff to levy on the plaintiff's
furniture at his new residence on 26 October 1965, for arrears of rent to 28
September 1965. The plaintiff sued the defendant for trespass consequent on an
illegal levy, and to this action, the defendant pleaded a special defence by virtue
of the respective Act. The resident magistrate found that the distress was lawful,
and entered judgment for the defendant. The appellant appealed and succeeded.
o Held:
(i) on the facts of the case the tenancy was determined when the
defendant accepted the key for the room from the plaintiff;
o the plaintiff's failure to give prior notice of his removal to the defendant was not
in breach of the Act and did not in any way prejudice his rights;
o the removal by the plaintiff of his goods was not clandestine or fraudulent or
with a view to elude distress. The distress was therefore illegal and the plaintiff
was entitled to a judgment for the special damages proved, plus general
damages.
o Shelley JA: In these circumstances the common-sense view must be that the
tenancy was at an end whether the notice was valid or not. To hold otherwise
would be to permit the landlord to hold with the hare and hunt with the hound
and grave injustice would be done to the tenant. However, one need not rely
upon common sense view, reliable as it may be. This is eminent authority
supporting the view that the tenancy was at an end. In the instant case, when
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the plaintiff removed his goods and handed over the key to the defendant, who
accepted it, on the 24th or 25th or 28th, for that matter, he was entitled to do so
without incurring any further obligation to the defendant by way of rent. The
tenancy having thus been then and there effectively terminated, the defendant's
right to levy ceased altogether and thereafter she would have had to use some
other method, for example, suit, to recover arrears of rent due and owing at the
time the tenancy was terminated. Therefore, the levy on 26 October was illegal
and the plaintiff was entitled to a judgment for the special damages proved, plus
general damages.
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V: PROCEEDINGS ON DISTRESS
The Person Levying Distress:
•
The landlord may levy distress in person or through an agent (called bailiff). The bailiff
may be appointed and authorised verbally but it is usual, and advisable, for his authority
to be in writing signed by the landlord - called a Warrant of Distress (see Woodfall, Vol.
1, p. 1216 for a form of the Warrant). A warrant of distress creates on the part of the
landlord:
1. an implied warranty that the landlord has the right to distrain, and
2. an implied undertaking to indemnify the bailiff against any act properly done in the
exercise of the authority given:
•
Draper v. Thompson (1829) 4 C & P. 84.
o A gave B authority to distrain on the goods of C, and gave him an indemnity
against all costs and charges that he might be at “on that account.” B. made the
distress, and his men being told by the son of C. that a certain cask contained
spent liquor, of no value, they took the cask to pieces, and let the liquor run off.
It was, in fact, cochineal dye, belonging to D. For the wasting of it D. recovered
damages against B. in an action of trover.
o It was held that B. could not recover the amount of those damages from A. in an
action on the indemnity, and that such an indemnity would only apply to cases
where a distress was illegal, because the landlord had no right to put in such
distress.
o Tindal, CJ: It never could be intended, that the defendant was to indemnify the
plaintiff against the acts of his own servants; and I am of opinion, that it only
applies to cases where a distress was illegal, because the landlord had no right to
put in such distress.
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•
But the warranty does not indemnify the bailiff against illegal or irregular acts done by
him in the course of distraining unless the landlord expressly or impliedly ratifies and
adopts those acts
•
Toplis v Grane (1839) 5 Bign. (N.C.) 636
o Defendant, attorney of O., authorized Plaintiffs, as brokers, to distrain the goods
on A.'s premises, for rent due to O.; whereupon the distress was made. Some of
the goods being privileged from distress, and claimed by the owners, Plaintiffs
required an indemnity, which Defendant gave on the part of O., and afterwards
said he would give a further guaranty. The owners of the privileged goods having
sued and recovered against Plaintiffs; it was held that Defendant was liable to
make good the loss they had sustained. Tindal CJ: It is quite unnecessary to lay it
down as a general rule of law, that the broker who enters under an ordinary
warrant of distress, and takes goods upon the premises that are privileged by law
from distress, can look for indemnity from his employer. In most cases, the broker
has a better opportunity of informing himself, as to any exemption from the
liability to distress which may belong to the goods found upon the premises, than
the landlord or his agent can possibly have. The landlord and the agent, indeed,
have frequently no opportunity whatever. To hold, therefore, as a general
proposition, that the law gives, in all cases, an indemnity to the broker, would
have the effect, in many, of throwing the consequences of his own wrongful act
or want of caution from himself upon his employer; and would tend to render
him generally careless in the discharge of his duty.
o In the first place, the Defendant knew that the premises on which the distress was
to be taken were in the occupation of an auctioneer, and that the lower part of
the premises were used by him for the purpose of an auction room. In the next
place, by his warrant of distress, he directs the Plaintiffs or their agent to seize
and distrain “the several goods and chattels on the premises,” words that
necessarily import his intention that no part of the goods were to be left. In the
third place, the Defendant desires the distress to be levied forthwith, assigning as
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a reason to the Plaintiffs' clerk, “that there was a large quantity of furniture in the
auction room,” which could not have been understood by the Plaintiffs in any
other sense than a specific direction to take the furniture there found; the
Defendant adding, by way of urgency to his direction, “that, unless the Plaintiffs
could get the distress levied at once, he must take it elsewhere to be done.” And,
lastly, the request made by the Plaintiffs to the Defendant for an express
indemnity, before they proceeded further with the distress, shows that they had
contemplated acting under an indemnity; and the express indemnity then given,
to which the Defendant was one of the subscribing parties, viz. an indemnity for
proceeding to sell the goods, was calculated still further to assure the Plaintiffs
that the Defendant originally intended to indemnify them; and, if so, the
subsequent withdrawal by the Defendant of such indemnity, whether right or
wrong, could not have the effect of discharging him from his original
responsibility.
•
Statute in T&T provides that no person shall act as bailiff to levy distress unless
authorised to act as such by a certificate in writing under the hand of a magistrate.
As such, the levying of distress by an uncertified bailees is an illegal distress, and
both the bailiff and the landlord will be deemed to have committed trespass,
deemed trespass ab initio.
•
Perring v Emerson (1906) KB 1
•
The plaintiffs, who were furniture dealers, had supplied furniture on the terms of a
hire-purchase agreement to one Pierce, the defendant's tenant in a flat. On February
22, 1905, the furniture then being at the flat and Pierce being in arrear with the
payment of the hire installments, the plaintiffs sent their foreman with three other
men and a van to take possession of the furniture and to remove it from the flat, as
they were entitled to do under the terms of the hire-purchase agreement. At this
date Pierce was in arrear with the rent of the flat, not having paid the quarter's rent
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which had become due on December 25, 1904, and one Milner, who was a servant of
the defendant, but who was not a certificated bailiff, becoming aware that the
furniture was about to be removed by the plaintiffs' men, entered the flat and,
stating that he had authority from the defendant to distrain for the arrears of rent,
claimed to detain the furniture until the rent had been paid. The plaintiffs' men,
however, proceeded with the removal and placed the furniture in their van which
was standing in a private roadway belonging to the defendant, but not forming part
of the premises demised to Pierce. The defendant's servants detained the van in the
roadway until the arrival, later in the day, of a duly certificated bailiff, who, acting
in the name of and with the authority of the defendant, had the furniture removed
from the van and taken back to the flat, where it was detained until it was eventually
sold by the defendant. The plaintiffs then brought this action claiming damages for
the conversion of their furniture. The county court judge gave judgment for the
plaintiffs. The defendant appealed. The appeal was dismissed.
•
Lord Alverstone CJ.: It cannot have been overlooked that a distress may be levied on
goods which are not the property of the tenant but of some third person, and since
the section causes a seizure by an uncertificated bailiff to be an illegal act, if it had
been intended to limit the operation of the section to cases between landlord and
tenant, language would have been used pointing clearly to that result. In the present
case it is not disputed that Milner was an uncertificated bailiff, and that the goods
had been removed from the flat by the plaintiffs before the arrival on the scene of
the certificated bailiff. Therefore, unless the defendant can rely on the original
seizure by Milner, who was not a certificated bailiff, he cannot justify as against the
plaintiffs the retaking possession of the goods. I have come to the conclusion,
though not without hesitation, that the protection of the Act operates for the benefit
of the owner of the goods seized as well as for that of the tenant, and I am therefore
of opinion that the county court judge was right in giving judgment for the plaintiffs.
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•
Bailiff’s Act, Chapter 4:61, Section 8:
1. No person shall engage in business as a bailiff unless he is licensed under this Act
and is in possession of his licence.
2. A person who carries out any function of a bailiff—
a) without a licence;
b) while his licence is suspended; or
c) after his licence is cancelled, commits an offence and is liable on summary
conviction to a fine of ten thousand dollars and to imprisonment for six months,
and in the case of a second or subsequent offence to a fine of twenty-five
thousand dollars and to imprisonment for two years.
The Entry
•
The entry into demised premises for the purpose of levying distress is regulated by
common law. A distrainer may enter demised premises in any manner normally used
to enter the premises, but he may not break an outer door. Thus, he may turn a key in
a lock, lift a latch, etc. He may not enter through a closed window.
•
American Concentrated Must Corp. v Hendry (1893) 62 L.J.Q.B. 388
o There the plaintiffs occupied a warehouse within a courtyard as sub-lessees. The
courtyard was included in their sub-lease, and the usual access to it was by a gate
opening on a lane. The entire premises demised by the head landlord to his
immediate lessees were larger than and comprised the premises sub-let to the
plaintiffs. The plaintiffs had paid their rent, but the immediate lessees were in
default to the head landlord, who distrained on the plaintiffs as being in possession
of part of the premises. In levying the distress, the broker of the head landlord left
the outside gate untouched and effected his entry into the courtyard by passing
through the building in the occupation of the immediate lessees. Once in the
courtyard, he broke open the main door of the plaintiff's warehouse and distrained.
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o It was held by Bowen LJ in an action to recover damages for illegal distress that the
plaintiffs were entitled to succeed. On appeal, counsel urged that the door of the
plaintiff's warehouse which was broken open by the broker was in one sense, an
outer door, but it was not the “outer door” of the demised premises. “The whole of
the property demised to the immediate tenants must be taken to be the demised
premises and, as the broker entered peaceably through the warehouse which was
not sub-demised to the plaintiffs, the other doors and gates which the broker
opened were really inner doors within the meaning of the expression with regard to
levying a distress.”
•
Thompson v Facey (1976) 24 WIR 457
o The respondent, F, was the head-lessee of premises of which the first named
appellant, T, was the landlord. F had erected on the premises a house of four
apartments, three of which he occupied, the fourth being sub-let to E. One door
afforded entrance to, and exit from E's apartment which was separated from the rest
of the house by a door so bolted or locked that neither E nor F could obtain entrance
to each other's abode. F fell into arrears to the extent of $150 and the second-named
appellant, R, on the orders of T, executed distress upon the goods of F, not for $150,
but for $180. Gaining entrance without force through the door to E's room, R forcibly
unlocked the intervening door, entered the part of the house occupied by F and
there distrained upon his goods.
o The principal questions raised by the evidence at the trial were (i) whether the levy
was illegal and (ii) whether it was excessive.
o The resident magistrate answered both questions in favour of F and awarded
judgment accordingly.
o In relation to (i) the magistrate reached the conclusion that “for all practical
purposes (the intervening door) was the plaintiff's outside door for it separated his
holding from that of the sub-tenant (E)”.
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o With respect to (ii) the evidence disclosed that F had sued T for “thirty dollars being
amount due and owing for rent overpaid by the plaintiff to the defendant…”, and
had obtained a judgment by consent for the sum claimed, which was satisfied, with
costs. The magistrate rejected a submission advanced on behalf of T “that by
repayment of the $30.00 irregularly levied the plaintiff was adequately
compensated”.
o On appeal, held (i) that the real test as to whether the door which was broken was
an outer door depended on whether it served as a protection to the outside world;
by reference to the structure of the house and to the demise as a whole the door was
clearly an inner door and R was not, therefore, guilty of an illegal levy by forcibly
unlocking it;
o (ii) that the consent judgment between F and T constituted a bar as between them
and their privies to all subsequent proceedings in the same cause; in these
circumstances, the resident magistrate had fallen into error in rejecting the
submission advanced on behalf of T; Appeal allowed;
o Watkins JA (AG.): In the instant case it was not challenged that rent was in arrear
and indeed the single question was as to whether that door intervening between
Miss Edward's and Facey's respective abodes which was admittedly forcibly opened
was indeed an outer door.
o The answer is to be determined not only by a consideration of the structure of the
house but also by reference to a consideration of the policy and purpose behind the
ancient and long settled rule of law that a distrainor for rent may break an inner
door but may not break open an outer door.
o First of all, the right of distress extends over all the demise out of which the rent
issues. The entire house in the instant case formed a part of the relevant demise and
not merely the portion in actual occupation by the respondent. Next the real test is
as to whether the door or other apparatus, whatever it may be, which has been
broken or forcibly unbarred served as a protection against the outer world. This
intervening door served only to provide privacy as between the respective occupants
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of the rooms on either side thereof. Confessedly the argument there, as here, is both
facile and impressive.
o The fact of the matter, however, is that the question whether a door is outer or inner
is not to be determined simply by reference only to a consideration of the geography
of the demise, but more so by reference to the function of the door. In the instant
case the intervening door which was forced open by the second named appellant
was, by reference to the structure of the house and by reference to the demise as a
whole, an inner door. More importantly, however, it did not serve to afford
protection from the outer world to the respondent.
o The conclusion of law on this issue in favour of the respondent is, therefore, wrong,
and the levy accordingly was not ab initio illegal.
•
Ryan v Shylock 7Ex. 7
o The plaintiff being tenant to the defendant of certain premises including a stable,
which was a detached building, and rent being in arrear, the defendant entered the
stable and seised a chattel as a distress. Upon the stable door was a padlock attached
to a staple, which was placed in the external woodwork of the door, but could be
easily drawn out, and the ordinary mode in use for obtaining access to the interior
of the stable was by drawing out the staple, and not by unlocking the padlock. The
jury found that, upon the occasion in question, the staple was pulled out without
violence, and that by these means the entry and distress were effected. The plaintiff
abandoned all the counts but the count in trover (Trover is a form of lawsuit in
common-law countries for recovery of damages for wrongful taking of personal
property); and, under the direction of the learned Judge, a verdict was entered for
the defendant, with leave to the plaintiff to move to set that verdict aside, and to
enter a verdict for him for the sum of 6l., being the value of the chattel seised.
o Pollock CB: In this case the question turned upon the power of a landlord to make
a distress, that is, how far he was justified in making an entry into premises, for
which purpose he used no more force than was necessary to open the outer door,
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which was shut to keep the door closed only, and not to keep people out. According
to the evidence in the present case, the door had on it a padlock with a staple; but
the mode by which the owner and everyone else opened the door in order to obtain
admittance was, by pulling out the staple, which served much in the same way as a
button or nail does, which is sometimes to be found used for keeping gates “shut,”
an ambiguous term, and meaning either a mode of preventing a door from opening
of itself, or from being opened by force or violence, or by such persons as have the
key or some other means of opening the door. The jury found, upon the question
being expressly put to them, that the padlock and staple were not for the purpose of
keeping the door fastened, but merely closed; and as it is no part of the present
question whether the verdict was against the evidence, the question is reduced to
this, namely, whether a landlord, who on coming to his tenant's premises for the
purpose of distraining finds the outer door closed, but capable of being opened by
lifting a latch, is justified in so doing. We are of opinion that the landlord has
authority by law to open the door in the ordinary way in which other persons can
do it, when it is left so as to be accessible to all who have occasion to go into the
premises.
o At first instance, Lord Coke explains the meaning of the term “enclosure in the
following words: “Enclosure . . .. for the lord cannot break open the gates, or break
down the enclosures to take a distress; and therefore, the law accounts it a disseisin.”
Now, if these two matters be taken together, inasmuch as breaking down the
enclosures would clearly be a forcible entry, we think that the breaking open the
gates must be understood to be such a breaking as is also equivalent to a forcible
entry; for Lord Coke proceeds to say: “But all these are intended by Littleton to be
disseisins after an actual seisin had, and when the rent is behind; otherwise, none of
these are disseisins at all.” Now, there is a passage in Fitzherbert “Distress,” pl. 21,
which was much relied upon by the plaintiff: “Note, that a man came to the stable
of his tenant to make a distress, and when he came, the door was shut with a bar,
and he put in his hand to a hole and took away the bar and opened the door, and
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entered and took two cows in the name of a distress; and because he opened the
door in this manner, it was adjudged that the distress was tortious.” It is pretty
manifest that the operation alluded to in the preceding passage very much
resembles that of a person who, on finding a hole in a door or pane of glass, puts his
hand in through the hole to remove the fastening of the door or window, and so
gains admittance into the premises, which no doubt amounts to both a burglary and
trespass, as such is not the accustomed mode of obtaining admittance into the
premises.
o The passage from Lord Coke is a direct authority in favour of the defendant; and
that from Fitzherbert, when examined, turns out to be so also. We may observe that,
as to the passage referred to during the argument that the sheriff may not open a
latch, there is no reference to any authority in support of it; and it is clear that the
cases cited do not support that proposition. However, that passage applies only to a
sheriff entering a dwelling-house under an execution. As the rule will be discharged
on this ground, it therefore becomes unnecessary to express any opinion upon the
other questions in the case.
The Seizure
•
The next step is seizure of the chattels to be distrained. Note that seizure may be:
o Actual - laying hands on the chattels distrained, or one of them and using words
indicating that distress has been levied on all of them
▪
Cramer v Mott (1870) L.R. 5 Q.B., 357, 359.
•
W. occupied lodgings in the defendant's house at a weekly rent. He brought
a piano with him, which he had hired of the plaintiffs. The plaintiffs sent two
men to fetch away the piano; the defendant's wife met the men in the passage
of the house outside the room in which the piano was, and having been
informed of their object, said, in the presence of W., who was at the door of
the room, the piano should not leave the house unless what was owing from
W. for rent and board were paid. The wife was acting by the defendant's
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authority; and there was rent due from W. The plaintiffs having brought an
action for the conversion of the piano, the defendant justified the detention
as a distress. The judge directed a verdict for the defendant:
•
Held, that there might be a distress without actual seizure, and that what had
occurred amounted to a distress.
•
Cockburn, C.J.: I am of opinion that this case is governed by Wood v. Nunn;
in substance the facts are the same. In that case there was an actual seizure
by putting hands on the article; but a seizure may be constructive as well as
actual. In the present case, on the plaintiffs' men coming for the piano, the
defendant's wife meets them in the passage just outside the room in which
the piano is, and says, "the piano shall not be taken away till our rent is paid."
She was not, perhaps, actually on the demised premises, being outside the
door of the room; but she was close to the door, the tenant being at the door,
and she was so close that if the men had persisted in attempting to remove
the piano, she could have at once interfered and prevented the removal. The
case is, therefore, substantially on all fours with Wood v. Nunn, which I think
was well decided. I think there need not be an actual seizure to create a
distress, it is enough that the landlord or his agent takes effectual means to
prevent the removal of the article from off the premises, on the ground of
rent being in arrear; and he does this when he declares that the article shall
not be removed till the rent is paid.
•
Blackburn, J.: At common law a landlord could seize any chattels on the
demised premises, but could only detain them till the rent was paid; and,
although he had the right to seize the goods of a stranger, practically there
was no hardship, as the landlord was bound to give up the goods on tender
of the rent. But the legislature intervened, and gave the landlord a power to
sell, after certain formalities; and the consequence is, whether it was
intended or not, inasmuch as the landlord is empowered to sell any goods
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which he may seize, he may also sell the stranger’s goods. This, no doubt, is
a great hardship, but such is the law.
o Constructive - any act indicative of an intention to distrain
▪
Cramer v Mott, supra.
•
The judge directed a verdict for the defendant: Held: that there might be a
distress without actual seizure, and that what had occurred amounted to a
distress.
Notice of Distress
•
See section of the Statute giving the power of sale of goods distrained. The usual form
and contents of the notice must be known. An inventory of the goods distrained is
usually placed in a schedule, or annexed to, the notice. See Woodfall, Vol. 1 p. 1217.
•
As soon as the distress is complete, the distrainor should make an inventory of the
goods intended to be included in the distress and given notice of the distress to the
tenant.
•
NB: if there is no notice of distress, the distress will be IRREGULAR, so that such a
notice at all times should be given to the tenant. The notice must state:
(1) The cause of the distress: the rent and costs due;
(2) The goods taken, including such information that will enable the tenant to know
exactly what particular goods have been seized;
(3) The place of impounding, if the goods are impounded off the premises;
(4) The time at which the goods are to be sold unless replevied or the rent and charges
paid. The goods are usually sold 5 days later.
•
A list of the goods must be set out in the inventory, which is either placed in the
schedule or attached to the notice.
•
NB: Up to this point, rescue of goods is available.
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Impounding
•
After the seizure and notice, the goods are impounded, that is secured in safe custody.
At common law impounding can be either on or off the premises. The effect of
impounding is to place the goods in the custody of the law.
•
Landlord and Tenant Ordinance Ch. 27 No. 16, Section 8: Every person having rent
in arrear and due to him upon grant, lease, demise or contract whatsoever shall have
the same remedy by distress for the recovery of such rent as is given by the law of
England in the like case.
Appraisement
•
Landlord and Tenant Ordinance, Section 18: The landlord, steward, bailiff, receiver
can seize as distress for arrears of rent any cattle/stock of any lessee feeding on any part
of the demised premises;
•
The landlord et at can also take and seize all sorts of fruit, produce or other product
which is growing or in the course of manufacture on any part of the demised premises.
•
The landlord et at can cut, gather, make cure, carry and lay up when ripe or cured fruits,
etc., in the buildings/other place in the demised premises.
•
If there are not buildings or proper places on the premises, he can place them in any
other building/other place for that purpose, as near as possible to the demised premises.
•
At a convenient time, the landlord et al shall appraise, sell or otherwise dispose of the
goods towards the satisfaction of rent.
•
The charges of such distress, appraisement and sale are to be disposed of in the same
manner as other goods may be seized, distrained and disposed of.
•
The appraisement of such goods should be done before the goods are cut, gathered,
cured or made.
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Sale
•
King v England (1864) 4 B&S 782
o A tenant assigned certain goods to the defendant by bill of sale. Subsequently, the
tenant fell into arrears with her rent, and her landlord levied a distress and seized
the goods which were duly appraised. The landlord then gave the goods to the
plaintiff, his daughter, but the defendant seized them under his bill of sale and the
plaintiff sued for them in action of trover. It was held that until there was a sale the
property in the goods remained in the tenant and did not pass to the landlord; since
there was no sale the landlord could not give them to the plaintiff who, therefore,
had no property in them; and her action failed.
o Sir Alexander Cockburn CJ: By the common law a landlord had no right to sell goods
taken as a distress; the property seized was in the nature of a pledge. By the relevant
Act, after certain preliminaries are complied with, he may now sell the property to
satisfy the rent and charges, and until that sale takes place, the property, though in
his possession, is not out of the tenant. As the property does not pass until there is
a sale, the question is whether there was a sale. What took place was this. Goods,
having been seized for rent, are appraised, and, instead of being sold, the landlord
says: "I'll take them at the price," and he does so and gives them to the daughter. I
cannot look upon this as a sale. The statute says, that after the goods have been
appraised the parties shall proceed to sell them for the best price that can be got for
them. This does not authorise the party distraining to take the goods to himself; the
Act does not use language that will authorise any such proceeding. Until there is a
sale, the goods remain in the ownership of the tenant. As, therefore, there was
nothing like a sale, the landlord could not give them to the plaintiff, who, therefore,
was not the real owner.
•
Plasycoed Collieries v Partridge (1912) 2 KB 345
o The defendants, who were the owners of a seam of coal, let it to a tenant with the
right to work and get the coal on payment of a royalty for each ton of coal worked,
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and there was a power of distress if the royalties were unpaid. Subsequently the
lessee sold to the plaintiffs the right to get the coal under the lease held by him on
payment to him of all such sums as should become due in respect of the royalties.
After the plaintiffs had taken possession the royalties payable by the lessee to the
defendants fell into arrear, and the defendants distrained certain ponies, the
property of the plaintiffs, and certain wagons which the plaintiffs had hired from a
wagon company. The defendants had the ponies and wagons appraised and
purported to buy them for themselves at the appraised value, and they then worked
the ponies for their own purposes, and delivered up the wagons to the wagon
company on demand, though no sum was due for the hire of the wagons. In an
action by the plaintiffs for conversion of the ponies and wagons, the sale to the
defendants being invalid, the defendants contended that by reason of s. 19 of the
Distress for Rent Act, 1737, they were not liable for conversion, but only for the
special damage sustained by the plaintiffs:
o Held, that, as the acts complained of were not done by the defendants in their
capacity of distrainors nor in the course of the distress, but in their supposed
capacity as owners of the goods by purchase and after the completion of the distress,
s. 19 did not apply, and the defendants were liable for conversion. Hamilton J: It is
well-established law that where chattels have been placed in the hands of a bailee
for a limited purpose, and he deals with them in a manner wholly inconsistent with
the terms of the bailment, and consistent only with his intention to treat them as
his own, the right to the possession revests in the owner, who can sue the bailee in
trover. Accordingly, though the analogy between a bailee and a distrainor is not
perfect, this would apply, unless some substantial distinction can be rested on the,
rule that a distrainor's possession, if possession it can be called, is the custody of the
law and not the separate possession of a bailee.
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VI: SECOND DISTRESS
•
The remedy of distress is not to be used in an oppressive manner, so that at common
law there is a rule against levying a second distress in respect of the same rent when it
was possible to have taken enough on the first occasion.
•
To do this common law rule, there are several exceptions:
1. where there are not sufficient goods on the premises on the first occasion;
2. where the landlord has reasonably mistaken the value of the goods taken in the first
distress;
3. where the conduct of the tenant has prevented the landlord from realising the fruit
of the distress;
4. where cattle die in the pound by an act of God.
•
Where however a first distress is void ab initio, the landlord may effect a second distress.
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VII: RESCUE AND POUNDBREACH
•
Landlord and Tenant Ordinance, Section 12: In an action for pound-breach or
rescue, the landlord shall recover his TREBLE damages and cost of suit against the
offenders or owners of the goods distrained in case it be discovered afterwards that the
goods have come into his possession or use.
•
Rescue and Pound-breach are similar in factual background, what differs is the
circumstances in which they are justified.
•
Rescue is the taking away of goods out of the possession of the distrainor after they
have been seized but before they are impounded.
o Rescue is justifiable when the distress is wholly wrongful e.g., when no rent is due,
but it is not justifiable when the distress is irregular or excessive.
o The student should take care to distinguish rescue from fraudulent or clandestine
removal of goods to avoid distress. The latter takes place before seizure.
•
Poundbreach is the taking away of goods distrained after they have been impounded.
o It is said that, unlike rescue, poundbreach can never be justified:
o See Firth v Purvis (1793) 5 Term Rep. 432.
▪
Here, J. Mossman, the plaintiff's tenant, was in arrear for rent; that the plaintiff
had distrained four pipes of beer for the same, and had impounded them in a
convenient part of the premises, with intent to appraise and sell the same, and
that the defendants broke the pound and carried the pipes away. The distress
was proved, and the proper notice to the tenant, and also notice to the
defendants, who were creditors of Mossman, and acted under an assignment
from him for the benefit of his creditors, and who had sold the goods distrained.
Subsequently, the defendant pulled out a purse at the time the offer to pay was
made; and was prevented from telling out the money by the declaration of the
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plaintiff, who said he would not receive it, but would have the casks he had
seized.
▪
A legal tender was made in sufficient time to avoid the action. The law with
respect to tenders is not so strict, now as formerly. It is not necessary to count
the money down, and offer it in gold coin to the party. It is sufficient if there be
an offer to pay the particular sum, and the plaintiff refuse to take it at all, either
upon the claim of more being due, or the like, but without any specific objection
made at the time to the manner in which the tender is made. However, it was
held that if the distrainor takes the goods out of the pound for the purpose of
using them, the owner may retake them without being guilty of pound breach.
o However, it was held that if the distrainor takes the goods out of the pound for the
purpose of using them the owner may retake them without being guilty of
poundbreach.
o Study the case of Smith v Wright (1861) 6 HON. 821
▪
In this case, the plaintiffs, the owners of a colliery, having distrained two horses
belonging to defendant for rent in arrear from H, the lessee of the colliery,
impounded them in the stable of an inn about half a mile from the pit. Two days
afterwards plaintiffs’ servant brought the horses to the colliery for the purpose
of letting them down into the pit where they had been accustomed to work. One
of the horses was placed in a movable stable near the pit’s mouth and the other
in a skip ready to be let down into the pit. Defendant then forcibly took away
both horses. It was held that the distrainor having misused the distress,
defendant was at liberty to retake his property without being liable for a rescue
or pound breach.
▪
Martin, B.: All that the distrainor of goods obtained at common law was not the
property in the goods but a sort of pledge; and the law directs how that pledge
is to be used. If a distrainor abuses a distress by working it, the owner may
interfere and prevent it, and no action can be maintained against him for pound
breach or rescue.
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▪
The remedies for rescue and poundbreach are:
1. Recaption - the right to pursue and peaceably retake the goods upon fresh pursuit.
2. A Common law action for damages.
3. A special action for treble damages under s. 3 Distress Act, 1689 (U.K.) Enacted in all
the territories.
4. Poundbreach is also an indictable offence at common law.
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VIII: ILLEGAL, IRREGULAR AND EXCESSIVE DISTRESS
•
At common law, no distinction was drawn between an illegal and an irregular distress,
any irregularity making the entire proceedings void and the distrainor a trespasser ab
initio. As this caused hardship to landlords, Statute was enacted to provide that then
the distress is only irregular and not illegal, the party making the distress shall not be
treated as a trespasser ab initio.
•
Landlord and Tenant Ordinance, Section 13
•
Landlord and Tenant Ordinance, Section 25:
o If any superior landlord shall levy or authorise to be levied a distress on any
furniture, goods or chattels of any lodger for arrears of rent due to such superior
landlord by his immediate tenant, such lodger may serve such superior landlord or
the bailiff or other person employed by him to levy such distress, with a declaration
in writing made by such lodger, setting forth that such immediate tenant has no
right of property or beneficial interest in the furniture, goods or chattels so
distrained or threatened to be distrained upon, and that such furniture, goods or
chattels are the property or in the lawful possession of such lodger; and also setting
forth whether any and what rent is due and for what period from such lodger to his
immediate landlord; and such lodger may pay to the superior landlord or to the
bailiff or other person employed by him as aforesaid the rent if any so due as last
aforesaid, or so much thereof as shall be sufficient to discharge the claim of such
superior landlord. And to such declaration shall be annexed a correct inventory,
subscribed by the lodger, of the furniture, goods, and chattels referred to in the
declaration; and if any lodger shall make or subscribe such declaration and
inventory, knowing the same or either of them to be untrue in any material
particular, he shall be deemed guilty of a misdemeanour.'
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Illegal Distress
Occurs where the right to distrain has not arisen or, if there were a right to distress, an
unlawful act was committed between entry and seizure.
Landlord and Tenant Ordinance, Section 13:
If distress and sale of goods is carried out by virtue of this Ordinance under false pretenses
in that no rent is in fact due to the person distraining, the owners of such goods, executors
et al, shall and may by action against the person distraining recover DOUBLE the value of
the goods together with their full costs of suit.
•
Distress is illegal if:
o The person distraining has no right to distrain; or
o He has made an otherwise lawful distress illegal, for example, by breaking into the
premises or by selling goods not set out in the notice.
o The distrainor has no right to seize the chattels and he can confer no title to them
upon a person to whom, under the colours of distress, they may purport to have
been sold.
•
The tenant may act in one out of two ways.
o He may recapture the goods under the process called rescue, but this must be done
before they are impounded.
o He may bring an action at any time before sale in replevin.
Irregular Distress
•
Occurs where though there is a right to distrain, a wrongful act was committed
subsequent to the seizure.
•
Landlord and Tenant Ordinance, Section 25:
o Where distress is made for any kind of rent justly due and the person distraining or
his agent commits any irregularity or unlawful act afterwards, then the distress itself
is not unlawful and the party committing it is not a trespasser ab initio.
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•
However, the aggrieved party shall and may recover full satisfaction for the special
damage he would have sustained and no more, in an action for trespass or on the case
at the election of the plaintiff.
•
Landlord and Tenant Ordinance, Section 26:
o The occupier of a house or lodging by week or by month or pays rent which does
not exceed $72.00 per year can make a complaint to a magistrate that his goods have
been taken from him by unlawful distress or the landlord is guilty of any irregularity
or excess in respect of such distress.
o If this person appears to be true to the magistrate, he can order the distress to be
returned if it has not been sold on payment of the rent which shall appear to be due.
o If sold, he may order payment to the tenant of the value thereof, from which any
rent due shall be deducted.
o A landlord or party complained against, in default in compliance with any such
order of the magistrate, shall forfeit and pay on order of the magistrate to the
aggrieved party the value of the distress, not being greater than $72.00.
•
In irregular distress, the distress is lawful and in order, the subsequent proceedings have
been conducted in an unlawful manner, for example, selling the goods below the best
price or selling the goods before 5 days have passed.
•
For a distress that is only irregular and not illegal at the onset, the distrainor is not
treated as a trespasser ab initio and the tenant can only recover the special damages
that he has suffered.
•
The remedy of the tenant against his landlord is damages as against his landlord.
•
A person who purchases goods under an irregular distress acquires a good title to the
goods.
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Excessive Distress
•
This involves taking more goods than are necessary to satisfy the rent in arrears and the
costs of the distress.
•
For both irregular and excessive distress, the landlord is liable for the tort of wrongful
interference with goods.
•
Excess is relative. The value of the goods seized must be obviously disproportionate to
the rent and costs.
•
In such cases of excessive distress, the tenant cannot sue the person into whose
possession the goods have come: his remedy is against the landlord.
Illegal distress
occurs where the right to distrain has not arisen or, if there
were a right to distress, an unlawful act was committed
between entry and seizure. It is unlawful ab initio.
Irregular distress
occurs where though there is a right to distrain a wrongful
act was committed subsequent to the seizure.
Excessive distress
occurs where more goods seized than are reasonably
necessary to satisfy the arrears of rent owed and the charges
for the distress.
Illegal Distress - occurs - Rescue (Illegal in the way it was carried out)
where the right to distrain - Action against bailiff for damages. Landlord can
has not arisen or, if there
only be joined where express ratification of
were a right to distress, an
wrongful act. Damages amount to full value of
unlawful
goods without deduction for rent owed.
act
was
committed between entry - Replevin (where illegality stems from Absence of
and seizure.
Prerequisite)
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Irregular Distress - occurs - Action against Bailiff/Landlord for special damage
where though there is a
right
to
wrongful
distrain,
act
suffered by the tenant
a
was
committed subsequent to
the seizure.
Excessive
Distress
- - Action against Bailiff/Landlord for Damages.
occurs where more goods
Damages amount to value of goods wrongfully
are
seized less arrears of rent and cost of distress.
seized
than
are
reasonably necessary to
satisfy the arrears of rent
owed and the charges for
the distress.
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Christiane R. Dookie
•
IX: REPLEVIN
This is a remedy available to a tenant in a case where there has been illegal distress. The
remedy is only available where distrained goods have not been sold. It is commenced
in the High Court by writ of summons. Where the goods have been returned upon
payment of a security deposit at the commencement of the action, their value will not
be recoverable as special damages. General damages are recoverable in such an action
for annoyance, injury to trade, credit and reputation.
•
The remedy of an injunction is also available only to restrain a possible distress. The
Court will normally ask the tenant to pay any arrears of rent into the Court.
•
Sealandaire Ltd v Paul (1994) TT 1994 HC 109
o Where an illegal distress is alleged and a claim is made for restoration of the goods,
is known as an action in replevin, the procedure is set out in section 10 of the
Landlord and Tenant Ordinance. That section provides, on complaint to the
magistrate for the district, for security to be provided for the goods by means of a
bond in double the value of the goods distrained before deliverance, and for
returning the goods and chattels and prosecuting a suit for illegal distress without
delay in the Supreme Court.
•
Landlord and Tenant Ordinance, Section 9:
o In every case of distress for rent, the tenant or owner of the goods distrained upon
shall have the right to replevy the goods or chattels so distrained upon as is given by
the law of England.
•
Landlord and Tenant Ordinance, Section 10:
o If the goods for any person be wrongfully taken and withheld, the magistrate of the
district where the goods were taken has the authority to grant replevin of such goods
without the consent of the person who carried out the distress.
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o The magistrate shall before delivery of any distress take in his own name, a bond in
double the value of the goods distrained, from the plaintiff and two sufficient
persons a surety.
o Such value to be ascertained by the oath of one or more credible witness/es not
interested in the goods or distress.
•
The remedy consists of two parts:
o The replevy, by which the tenant obtains the re-delivery of the goods; and
o The action of replevin, in which the validity or otherwise of the distress is
determined.
•
If the tenant is successful, he may recover expenses and special damages.
•
The remedy is only available where distrained goods have not been sold.
It is
commenced in the High Court by writ of summons. He pays into the Court the sum in
dispute and takes possession of the goods.
•
This remedy can be exercised at any time before the sale of goods. However, according
to Warner J in Cornwall v Trincity Commercial Centre Ltd (1996) High Court, No
1437 of 1995, under s 11 of the Landlord and Tenant Ordinance of Trinidad and
Tobago, the distrainor is empowered to sell the distrained goods if replevy is not made
within five days.
•
If the claimant is successful, he will not be entitled to damages for the value of the goods
if they were returned to him when the replevy was made, BUT may recover general
damages annoyance and for injury to trade/credit/reputation (Smith v Enright -189363 LJQB 220)
Replevin is only Applicable to Illegally Distrained Goods
•
Replevin is a remedy that enables a tenant to recover possession of goods, which have
been illegally distrained. This is further elucidated in Sealandaire Ltd v Paul (1994)
High Court, No 169 of 1994.
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Christiane R. Dookie
•
Replevin is only available where the distress was illegal, not where it was excessive or
irregular. Illegal distress that can give rise to replevin are:
o where no rent was due
o where there was no demise at a fixed rent
o as in Selandaire, where the landlord/tenant relationship was terminated before the
distress was levied
•
Excessive distress occurs where more goods are seized than are reasonably necessary to
satisfy the arrears of rent and proper charges of the distress (Carter v Carter (1829) 130
ER 1118).
•
Irregular distress occurs where, although there was a right of distress, a wrongful act
was committed at some stage of the proceedings, subsequent to the seizure.
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Unit 4: Determination of Tenancies &
Recovery of Possession
Tenancies may be determined in several ways which include –
i.
effluxion of time (fixed term tenancies);
ii.
by operation of a power/option to determine;
iii.
by operation of a stipulated condition subsequent;
iv.
by surrender;
v.
by merger;
vi.
by notice to quit; (periodic tenancies)
vii.
by forfeiture; (by operation of condition precedent/by virtue of proviso included in
the lease)
viii.
by frustration; and
ix.
by compulsory acquisition.
This unit will examine methods (iv) to (vii).
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SURRENDER
•
A surrender is effected where a tenant yields up his term to the person immediately
entitled to the reversionary interest. Its effect is to destroy the lease by mutual
agreement.
Relevant Legislation
•
Trinidad and Tobago, Conveyancing and Law of Property Ordinance: Section 4:
1) No action may be brought upon any contract for the sale or other disposition of and
or any interest in land, unless the agreement upon which such action is brought, or
some memorandum or note thereof, is in writing, and signed by the other person
thereunto by him lawfully authorised.
2) This section applies to contracts whether made before or after the commencement
of this Ordinance and does not affect the law relating to part performance.
•
Section 10:
1) All conveyances of land or of any interest therein are void for the purpose of
conveying or creating a legal estate unless made by deed.
2) this section does not apply to;
a) disclaimers made under section 57 of the Bankruptcy Act, and under the
Companies Act;
b) surrenders by operation of law, including surrenders which may, by law, be
effected without writing;
c) leases or tenancies or other assurances not required by the law to be in writing;
d) receipts not required to be by Deed;
e) vesting orders of the Court;
f) conveyances taking effect by operation of law.
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•
Section 64:
1) Where a reversion expectant on a lease of land is surrendered or merged, the estate
or interest which as against the lessee for the time being confers the next vested
right to the land, shall be deemed the reversion for the purpose of preserving the
same incidents and obligations as would have affected the original reversion had
there been no surrender or merger thereof.
Requisites of a Good Surrender
1. The person who surrenders must be the person in whom the lease is vested:
•
Seward v Drew (1898) 78 LT 19
o Where a lease for twenty-one years contains the usual proviso for its
determination by the lessee or his assigns by six months’ notice at the expiration
of the first seven or fourteen years of the term, such notice, in order to be valid,
must be given by or on behalf of the person in whom the term is vested; and
therefore the first assignee of the lease, who has purchased an equitable charge
created by a second assignee by the deposit of the lease with the assignments as
security for a loan, is not entitled to give such notice, as he is not the person in
whom the term is vested.
o Channell, J: “The first question that arises is as to who it is who must give notice,
when there have been one or more assignments of the term. I think it is clear that
it must be given by, or at all events on behalf of, the assignee in whom at the time
of giving the notice the term is vested. The expression ‘the said R, his executors,
administrators, or assigns,’ means that one of the persons mentioned who for the
time being is entitled to the term. The giving of the notice is equivalent to a
surrender of the last seven years of the term, and can, as it seems to me, only be
given by someone entitled to surrender.”
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2. The surrender must be made to the person entitled to the immediate reversion
expectant on the term.
•
In other words, there must be privity of estate between the surrenderor and the
surrenderee. Thus, a subtenant cannot surrender to the head-lessor.
•
Edwards v Wickwar (1866) LR 1 EQ 403
o A in 1861, granted an underlease to B. for twenty-one years from Michaelmas, 1861,
at the yearly rent of £50. In 1864 he granted an underlease of the same premises to
C. for twenty-one years from Michaelmas, 1863, at the same rent. B. never attorned
to C.:
o Held inasmuch as there was no attornment, that the demise to C. did not pass the
reversion to him, but only an interesse termini; and that in order to establish C.'s
underlease, a surrender by B. to A., and not to C., was the effectual and proper
course.
o Sir Page Wood: “It appears that there was no attornment by Palmer to the
subsequent lessee, who is the present holder; and the decision in Rawlyns's Case
shews that the underlease to the present holder was not a grant of a reversion at
all. If Palmer had attorned, it would have been otherwise, and the reversion would
have passed; but, being without attornment, it was nothing but an interesse
termini, and the reversion remained in the lessors. Then, as between Palmer and
his lessors, Palmer is estopped by his surrender, and the vendors have a right to
say that, notwithstanding the lessors had passed their interest to Palmer at the
time when they granted Kitson's underlease, inasmuch as Palmer never attorned
to Kitson, the reversion remained in them, and there was nothing to prevent a
surrender by Palmer to them; and then, as between the lessors and Kitson, there
is established the relation of lessor and lessee, free from the possibility of any claim
by or through Palmer.”
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3. The surrender must be of the entire interest which was granted by the lease:
•
Bacon v Waller (1616) 3 Bulstr 203
o “As touching the surrender, if lessee for a hundred years grants unto his lessor all
his term, excepting one year, this is no surrender, clearly, and so likewise it is if
there be a saving to himself, a month, a week, or a day; this is no surrender.” A
lease to commence from a given day should be taken as exclusive of that day.
•
But the land itself may be divided and the tenant may surrender a part, either
expressly or by act of law, and the lease of the residue will be good:
•
Jones v Bridgman (1878) 39 LT 500
o Plaintiff, while lessee of five rooms from defendants for a term, entered into
negotiations with them by which he was to hold three only of the rooms at a
diminished rent, and on the next quarter day paid and took a receipt for rent at
the lesser rate. There was evidence that the parties intended a written agreement
to be prepared, embodying the terms of the new arrangement, but they ultimately
disagreed, and such agreement was never, in fact, signed. On the following quarter
day defendants claimed rent of plaintiff under the old lease, which he repudiated.
There was evidence that plaintiff had given up possession of two of the rooms:
Held the jury were justified in finding that there was a new tenancy, and therefore
there was a surrender by operation of law.
4. Both parties must consent to the surrender:
•
Weddall v Capes (1836) 1 M & W 50 per Parke B @ p.52.
o By agreement, dated in May, to which A, B, and C were parties, A and B agreed to
sell by auction an estate, to which they were entitled as tenants in common, or in
default of such sale, that such parts of it as should not be sold after 1 August and
before 1 September following, should be divided into two equal lots between A and
B; and that £100 should be paid by B to C, the principal tenant, as a remuneration
for his giving up possession of his farm at the Michaelmas following; and C agreed
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to give up possession of his farm accordingly. No part of the estate was sold by 1
September, but some portions were sold subsequently, and the remainder was
divided between A and B, but such division was not completed till the following
March. C continued in possession, by the desire of A and B, until that time, and
then quitted.
o Held the agreement was not a surrender of A’s term. Parke, B: “No particular words
are necessary to make a surrender if it sufficiently appears to be the intention of
both parties that the term should immediately cease; but this is an agreement for
it to cease in future.”
5. The surrenderor must have an estate in possession but this is not the case where the
doctrine of interessee termini has been abolished.
6. Surrender may be express or implied or it may take place by operation of law.
Express Surrender:
•
This takes place when the tenant surrenders in express terms.
•
Express surrender must be in writing and every such surrender of a term of more than
three years must also be by deed
•
Conveyancing and Law of Property Act, Section 4:
1) No action may be brought upon any contract for the sale or other disposition of and
or any interest in land, unless the agreement upon which such action is brought, or
some memorandum or note thereof, is in writing, and signed by the other person
thereunto by him lawfully authorised.
2) This section applies to contracts whether made before or after the commencement
of this Ordinance and does not affect the law relating to part performance.
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•
Conveyancing and Law of Property Act, Section 10:
1) All conveyances of land or of any interest therein are void for the purpose of
conveying or creating a legal estate unless made by deed.
2) this section does not apply to; (b) surrenders by operation of law, including
surrenders which may, by law, be effected without writing; (c) leases or tenancies or
other assurances not required by the law to be in writing; (f) conveyances taking
effect by operation of law.
Surrender by Operation of Law or Implied Surrender:
•
"This term is applied to cases where the owner of a particular estate has been a party to
some act, the validity of which he is by law afterwards estopped from disputing, and
which would not be valid if his particular estate had continued to exist": per Parke, B in
Lyon v Reed (1844) 13 M. & W. 285, 153 ER 118.
•
Such surrender is an act of the law and takes place independently of, and even in spite
of, the intention of the parties (Lyon v. Reed)
•
Surrender by operation of law is excepted from the statutory requirement of a deed
•
Conveyancing and Law of Property Ordinance, Section 10:
1) All conveyances of land or of any interest therein are void for the purpose of
conveying or creating a legal estate unless made by deed.
2) this section does not apply to; (b) surrenders by operation of law, including
surrenders which may, by law, be effected without writing.
I: Surrender by Acceptance of a New Lease
•
Lyon v Reed supra
o The term ‘surrender by operation of law’ is properly applied to cases where the
owner of a particular estate has been a party to some act, the validity of which he is
by law afterwards estopped from disputing, and which would not be valid if his
particular estate continued to exist. Thus, when lessee for years accepts a new lease
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Christiane R. Dookie
from his lessor, he is estopped from saying that his lessor had not the power to make
the new lease; and as the lessor could not grant the new lease until the prior one
had been surrendered, the acceptance of such new lease is of itself a surrender of
the former one. Such surrender is the act of the law, and takes place independently
of, and even in spite of, the intention of the parties. A surrender by deed is
unnecessary, where the former lessee is the party who takes the new lease, as the
fact of his so doing is evidence that the new lease has been accepted by him, and
such acceptance operates as a surrender in law; but it is not enough that the lessee
agrees to an act done by the reversioner.
o Semble: a demise of premises by the reversioner to a stranger, with the consent of
the lessee in possession, will not amount to a surrender by operation of law.
•
Surrender takes place even if the new lease is for a shorter period than the residue of
the old term. Such a surrender is subject to an implied condition that the new lease is
good, so that, should the new lease be invalid for some reason, the old lease remains in
force.
•
Knight v Williams [1901] 1 Ch 256
o The acceptance of a new lease operates as an implied surrender "by operation of law"
of the old lease within the meaning of s. 3 of the Statute of Frauds, but such
surrender differs from an actual surrender by deed: it is not absolute; it is subject to
an implied condition that the new lease is good, and if this is not so the old lease
remains in force. The authorities on this point are clear: see Woodfall's Landlord
and Tenant, 16th ed. p. 318. This being so, I think the plaintiff is wrong in contending
that he is in the position of an ordinary purchaser of a lease who can on completion
demand the handing over of the lease, and is at liberty to burn it if he thinks fit. The
lessee, notwithstanding a surrender by operation of law, retains an interest in the
lease.
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o Moreover, when a term is determined by re-entry, or has expired by lapse of time,
the lessor is not entitled to recover the lease. It would, I think, be wrong to put it
out of the power of the defendant to take advantage of the old lease should the new
lease prove to be invalid, and he is therefore entitled to retain the old lease.
II: Surrender by unequivocal delivery and acceptance of possession
•
Delivery of possession by the tenant to the landlord and the acceptance by the landlord
of such delivery effect a surrender by operation of law.
o Cannon v Hartley (1850) 9 CB 634n
▪
A was tenant to B of rooms, for a term of years. Upon the bankruptcy of B, A
sent the key of the rooms to the official assignee, where it was left with a clerk,
who was told that it was the key of the rooms which A had occupied. A
immediately quitted possession, and no further communication took place:
Held not to amount to a surrender by act or operation of law. Maule, J: “Here
there is nothing but the fact of the key being brought to the clerk of the official
assignee. It is contended that he was bound to receive anything brought to the
office for his master. That may be so; but it does not follow that this was an
acceptance by the master.”
o White v Brown (1969) 13 WIR 523
▪
The plaintiff appellant rented a room from the defendant respondent on a
monthly tenancy, rent being due on the 28th of each month. The defendant
served the plaintiff notice to quit “on 28 July 1965, next or at the end of the
month of your tenancy which will expire next after the end of 28 August 1965 –
month from the date of the 8 8 service of this notice on you.” The plaintiff
continued to occupy the room and the defendant filed ejectment proceedings
against him. The plaintiff having been served with the summons, moved to new
premises on either 24 or 25 September 1965, and handed the defendant the key
for the room that afternoon. The defendant caused a landlord bailiff to levy on
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Christiane R. Dookie
the plaintiff's furniture at his new residence on 26 October 1965, for arrears of
rent to 28 September 1965. The plaintiff sued the defendant for trespass
consequent on an illegal levy, and to this action, the defendant pleaded a special
defence by virtue of s 3 of the Landlord and Tenants Law, Cap 206 [J]. The
resident magistrate found that the distress was lawful, and entered judgment
for the defendant. On appeal,
▪
Held: (i) on the facts of the case the tenancy was determined when the
defendant accepted the key for the room from the plaintiff; Shelley J: “I am of
the view that the facts of the instant case show clearly that the defendant wished
to terminate the tenancy and when she accepted her key she intended to and
did finally put an end to the tenancy, therefore the resident magistrate's finding
that the tenancy was not determined cannot be upheld. The plaintiff's failure to
give prior notice of his removal to the defendant was not in breach of s 20 of the
Rent Restrictions Law, Cap 841, and did not in any way prejudice his rights. The
provisions of s 20, Cap 841, only applied to protect him whilst the tenancy was
in existence. The section says the tenant “shall be entitled to give up possession
of the premises only on giving such notice as would have been required under
the original contract of tenancy.” The plaintiff may have removed his goods but
nevertheless have retained possession of the room. It was at the moment the
landlord accepted the key from him that the plaintiff surrendered his possession
to the landlord, determined the tenancy, and went out of the orbit of the Rent
Restrictions Law.”
•
Such a surrender is based on the estoppel principle where once the parties have acted
toward each other in a manner which is inconsistent with the existence of a tenancy
they are estopped from asserting that the tenancy exists.
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Christiane R. Dookie
•
A surrender by operation of law is a question of fact.
o Castler and Others v Henderson 1877 2QB 575
▪
Where an action is tried by a judge without a jury, application for a new trial
upon any ground, whether the judge's decision on law or fact is complained of,
must, under r 5 of the RSC. December 1876, be made to the Court of Appeal.
Plaintiffs, by deed, leased premises to defendant for seven years from March
1868. In August 1868 defendant went to America, leaving the key with an agent
with instructions to let the premises. The agent (as defendant alleged) shortly
afterwards handed the key to plaintiffs, who tried to let the premises. In 1870
plaintiffs allowed some of their workmen to occupy part of the premises, and in
1872 they succeeded in letting the whole of them. On defendant's return from
America plaintiffs claimed rent from him from March 1868 to 1872.
▪
Held: that plaintiffs were not estopped from maintaining their action for the
rent, as the facts did not support an acceptance of a surrender of the lease before
they re-let the premises in 1872.
▪
Cockburn CJ: “Their position is this: they find that the person who has taken
the premises has gone away without, as far as the landlord can judge, any
intention of returning. What is the landlord to do? The best he can do seems to
me that he has done. He is not bound to let the premises lie unproductive and
useless; if he lets them, he saves himself from further loss, and does no harm to
the tenant who has gone away. If he does not let, but does all he can to let, I do
not see how he can be said to have resumed possession of the premises. It must
also be remembered that here we are dealing with a letting by an instrument
under seal, not to be done away with except by something of equal efficacy, or
because an estoppel has been created which prevents the plaintiff from setting
up the deed. Now, I am far from saying that an actual physical taking possession
of the premises by the landlord might not amount to accepting a surrender of
the lease; but here there has been nothing of that kind to create an estoppel,
with the single exception of one circumstance. Some large rooms in the
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Christiane R. Dookie
premises being unoccupied, the plaintiffs put some workmen into them for the
purpose of giving them a lodging during a press of work. I do not say it is
impossible that that fact might be held evidence of the plaintiffs having
accepted a surrender of the lease. I should certainly not so hold it myself, and
as I think that what the plaintiffs did neither actually or virtually amounts to an
accepting of the surrender of the lease, it seems to me useless to send the case
down again for a new trial.”
III: Surrender by change in the position of the Tenant
•
Where a tenant continues in occupation of premises in a capacity inconsistent with that
of a tenant.
o Foster v Robinson [1950] 2 All ER 342:
▪
The landlord, a farmer, was the owner of a cottage which had been occupied for
many years by defendant’s father who worked for the landlord on the farm and
paid a yearly rent of £6 10s for the cottage. In May 1946, defendant’s father, owing
to age and infirmity, had ceased to work, and it was then verbally agreed between
him and the landlord that he need not pay any further rent but could continue
to live in the cottage for the rest of his life rent free. Thereafter rent was neither
demanded nor tendered. Defendant’s father remained in the cottage until 15
January 1950, when he died intestate. Defendant, the administratrix of her
father’s estate, had lived with him in the cottage for a number of years and
resided there at the time of his death. The landlord informed defendant of his
intention to sell the cottage with vacant possession on 6 April 1950, and he
allowed her to reside there rent free until that date, but she refused to leave the
cottage. In an action for possession by the landlord the county court judge found
that under the agreement between the landlord and defendant’s father in May
1946, which was made in good faith, the contractual tenancy had ceased to exist
and defendant’s father became a licensee with permission to occupy the cottage
rent free for the remainder of his life, and that, as the parties had acted for nearly
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Christiane R. Dookie
four years in conformity with the agreement, defendant was now estopped from
asserting that the original tenancy still existed. Accordingly, an order of
possession was made in favour of the landlord. On appeal by defendant.
▪
Held (1) the agreement between defendant’s father and the landlord in May 1946,
was effectual to produce a surrender of the tenancy by operation of law, and
defendant was estopped from asserting that the old tenancy still existed;
▪
(2) in determining the question whether there was a surrender by operation of
law of premises within the control of the Rent Restrictions Acts, the same
principles must be applied as those which would be applicable in any other case;
there was sufficient evidence on which the county court judge could find that
the agreement of May 1946 was a genuine transaction; and there was nothing in
the Rent Acts which would prevent its having effect as a surrender of the
tenancy.
▪
Sir Raymond Evershed MR: “The question in the present case is whether on the
facts as found by the learned county court judge there are circumstances which
prevent the tenant from asserting that the old relationship has been superseded
by the new. Put in its simplest form, if there is a new arrangement which the
tenant represents by his conduct that he is asserting, then he is estopped from
denying that the landlord was capable of entering into that new arrangement,
and, if the new arrangement could not be entered into if the old agreement
subsisted, it follows that the tenant is equally prevented from denying that the
old agreement has gone. There was some argument in the present case in regard
to the proper conclusion as a matter of law to be drawn from the transaction if
it is properly described in the language, I have already referred to. It is divided
into more than one section. First, the existing tenancy ceased. Then comes the
second point: What took its place? The answer to that is: “I would charge him
no more rent and he would live there for the rest of his days rent free.” My own
conclusion from that statement of the facts is that the old tenancy was
extinguished by the creation instead of a licence for the former tenant, Mr.
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Robinson, to occupy these premises without any payment of rent for the rest of
his days.”
IV: Surrender by granting a lease to a third person with Tenant’s Consent
•
Where the landlord grants a new lease of the premises to a third party with consent of
the tenant. The old tenant must give up possession to the new tenant at or about the
time of the grant of the new tenancy.
o Wallis v Hands [1893] 2 Ch 75
▪
Chitty J: “The grant of a new lease in possession with merely the oral assent of a
person in possession under a prior subsisting lease does not operate as a
surrender in law of the prior lease. There is no surrender by operation of law
unless the old tenant gives up possession to the new tenant at or about the time
of the grant of the new lease to which he assents. The grant of a new lease to a
stranger with the tenant's assent and change of possession preceding or
following the lease are acts of notoriety giving rise to an estoppel in pais which
a mere oral assent will not do.”
o Lyon v Reed Supra
▪
Parke B: “It remains to consider whether, although there may have been no
surrender in fact, the circumstances of the case will warrant us in holding that
there was a surrender by act and operation of law.
▪
On the part of the plaintiff, it is contended that there is sufficient to justify us by
coming to such a conclusion, for, it is said, the fact of the lease of 7 April 1812,
being found in the possession of the dean, even if it does not go the length of
establishing a surrender by deed, yet furnishes very strong evidence to show that
the new lease granted to Osborn and Burt was made with the consent of Ord and
Plants, the lessees under the deed of 7 April 1812. This, it is contended, on the
authority of Thomas v Cook (1) and Walker v Richardson (2) is sufficient to cause
a surrender by operation of law.
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▪
To ascertain how far those two cases can be relied on as authorities we must
consider what is meant by a surrender by operation of law. This term is applied
to cases where the owner of a particular estate has been a party to some act the
validity of which he is by law afterwards estopped from disputing, and which
would not be valid if his particular estate had continued to exist. There the law
treats the doing of such act as amounting to a surrender. Thus, if a lessee for
years accepts a new lease from his lessor, he is estopped from saying that his
lessor had not power to make the new lease; and, as the lessor could not do this
until the prior lease had been surrendered, the law says that the acceptance of
the new lease is of itself a surrender of the former.
▪
So, if there be tenant for life, remainder to another in fee, and the remainderman
comes on the land and makes a feoffment to the tenant for life, who accepts
livery thereon, the tenant for life is thereby estopped from disputing the seisin
in fee of the remainderman, and so the law says, that such acceptance of livery
amounts to a surrender of his life estate. Again, if tenant for years accepts from
his lessor a grant of a rent issuing out of the land and payable during the term,
he is thereby estopped from disputing his lessor's right to grant the rent, and as
this could not be done during his term, therefore, he is deemed in law to have
surrendered his term to the lessor. It is needless to multiply examples. All the
old cases will be found to depend on the principle to which we have adverted,
namely, an act done by or to the owner of a particular estate, the validity of which
he is estopped from disputing, and which could not have been done if the
particular estate continued to exist. The law there says that the act itself emanate
to a surrender. In such case it will be observed there can be no question of
intention. The surrender is not the result of intention. It takes place
independently, and even in spite, of intention.
▪
Thus, in the case which we have adverted to of a lessee taking a second lease
from the lessor, or a tenant for life accepting a feoffment from the party in
remainder, or a lessee accepting a rent-charge from his lessor, it would not at all
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alter the case to show that there was no intention to surrender the particular
estate, or even that there was an express intention to keep it unsurrendered. In
all these cases the surrender would be the act of the law, and would prevail in
spite of the intention of the parties.”
•
Where the consent of the old tenant is not obtained there is no surrender and the new
lease operates as a concurrent lease.
Effect of Surrender
•
A surrender transfers the whole of the surrendering tenant’s interests to the landlord.
The landlord takes this interest subject to any lesser interests the tenant may have
created e.g., underleases.
o Wilkes v Spooner [1911] 2 KB 473
▪
“It was pointed out there that a surrender only affects what the surrenderor can
surrender, and when he has granted subordinate terms or sub-leases, they are
not discharged.
▪
Lord Ellenborough says in Doe d. Beadon v. Pyke (6), "We consider it as clear
law, that though a surrender operates between the parties as an extinguishment
of the interest which is surrendered, it does not so operate as to third persons,
who at the time of the surrender had rights, which such extinguishment would
destroy, and that as to them, the surrender operates only as a grant, subject to
their right, and the interest surrendered still has, for the preservation of their
right, continuance."
▪
It follows then from the principles already laid down that, if the plaintiff in the
present case had acquired an equitable negative easement in the leasehold
interest of the defendant Isaac James Spooner, the father, in No. 137, the father
could not defeat that interest by surrendering to the landlord. The interest
remained against the father for the term of the original lease, and it would appear
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to remain against the landlord, unless he obtained the legal estate for value
without notice.
▪
A surrender to the landlord would not affect sub-leases granted by the tenant Mellor v. Watkins (1) - because, though the landlord got a legal estate by the
surrender, this could not affect a legal interest which the lessee or surrenderor
had parted with and therefore could not surrender.
▪
And if the lessee had created not a legal but an equitable interest, such as that
created by the restrictive covenant in the present case, the surrenderee, the
landlord, has constructive notice of the title of his surrenderor, the lessee, which
he would have discovered had he made inquiries, and therefore cannot use his
legal title against the equitable interest: cf. Patman v. Harland. (2)
▪
The interest also remained against any one taking a grant of the premises from
the landlord, with notice of the original covenant. The defendant, the son, is
exactly in the latter position, for I find that the son knew before the surrender of
the father's restrictive covenant, and that the father made the surrender at the
son's request in the idea that the restrictive covenant would not be binding on
the son if he got a new lease from the landlord. I may add, to prevent
misunderstanding, that it was not contended before me that Nos. 137 and 170
were part of a common building scheme so as to bring them within the doctrine
of Renals v. Cowlishaw (3), Spicer v. Martin (4), and Elliston v. Reacher. (5) My
judgment would be the same if there had been no restrictive covenant in the
original lease of No. 137.”
o Re Thompson and Cottrell’s Contract [1953] Ch 97
▪
In 1941 a purchaser agreed to buy an underlease of a house, which was only part
of the property comprised in the head lease. On completion the purchaser found
that in 1930 the head lessee had become bankrupt and that in 1937 his trustee
had disclaimed the lease. The question was whether this disclaimer determined
the existence of the head lease and whether, therefore, the interest of the vendor
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could properly be described as an underlease. Held the disclaimer operated to
determine the head lessee's interest in the lease, but the disclaimer did not
entirely extinguish the lease, for a failure to pay the rent thereunder would justify
a distress, and in these circumstances the interest of the vendor could properly
be described as an underlease and a good title had been shown. Uthwatt J: “The
point taken at the bar is this. In fact, you have agreed to sell an underlease; that
is a well-known instrument, which takes effect out of a head lease. Here, in fact,
you have got nothing which can be rationally called a headlease and, therefore,
you have nothing to sell which can rationally be called an underlease. That is,
put shortly, the effect of the argument of counsel for the respondent; and he adds
to it by saying that the matter is not merely a technical one on account of the
uncertainties that arise under the Law of Property Act 1925, s 146(10), the
possibility that one sublessee might at the risk of forfeiting the sublease be called
upon to take a vesting order in respect of the lease and so on, that, anyhow, you
have not here a lessee bound to perform the covenants and that you have no
bargain between the sublessee and the head landlord, who, on failure to receive
his rent, remains entitled to distrain or entitled to forfeit the whole lease, in
which event, of course, there may be proceedings to obtain relief against
forfeiture under the Law of Property Act 1925. Those observations are simply
directed to working out what is the position and marking the fact that the
objection is not merely a technical one.
▪
However, that may be, I am only concerned with the question whether it can be
rationally said of this particular interest which is agreed to be sold that it was an
underlease. Upon its face the instrument purports to be an underlease. There is
no doubt about that. Was it so in fact? Can it be rationally said that it was an
underlease in fact, as described in the contract of sale?”
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•
Surrender stops the accrual of rent.
o W. Hill (Football) Ltd v Key & Harware Ltd (1964) 108 Sol Jo 482
▪
Where rent has been paid in advance and the lease is subsequently surrendered,
no part of the rent will be repayable by the lessors unless there is a clear
agreement to that effect.
•
Rent accrued before the surrender is recoverable by the landlord under the covenant to
pay rent.
o Torminster Properties Ltd v Green [1983] 2 All ER 457
▪
Stephenson LJ: “It may be said that the tenant who pays rent in arrear will have
already received when he pays it a substantial part of the benefit of the
occupation for which he has agreed to pay it, yet his liability does not survive a
surrender. But in my judgment the liability to pay rent determined in accordance
with a rent review clause is a liability which is not destroyed or discharged by a
surrender after the period for which it will ultimately be paid has started to run.
There is, when that period has started, a right to sue, not for the as yet
undetermined rent but for a declaration that the tenant is liable to pay it when
determined, as the Cheapside Land Development Co case shows. There is not an
antecedent breach of an obligation, indeed there could not be until the quarter
day immediately following 25 January 1980; but there is an antecedent obligation
accruing before surrender puts an end to the lease. The lessee has no right to
occupy the premises after the review date rent-free: he owes a contractual duty
to pay at least the initial rent as long as he holds the lease, however long the
determination of the new rent may be delayed. It is the prior existence of that
contractual obligation, that covenanted liability, of the tenant which
differentiates such a claim as this from a landlord's claim to recover rent payable
in arrear after the date of surrender, for there the tenant is under no obligation
or liability to pay any rent before that date.”
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•
The liability for breaches of covenant other than the covenant to pay rent, if accrued
before the surrender, remains.
o Torminster Properties Ltd v Green, Supra
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MERGER
•
A lease is determined in this manner when the leasehold interest and the reversion
become vested in the same individual and there is no evidence of the lack of intention
of the parties to achieve this result.
•
A merger extinguishes all the covenants of the lease.
•
Golden Lion Hotel v Carter [1965] 3 All ER 506
o A lease dated 6 April 1872, of a plot of land fronting a road for a term of ninety-nine
years from 29 September 1871, contained a covenant by the lessor, who was also the
owner of land with a hotel on the opposite side of the road on behalf of himself, his
heirs, etc., not to build on the hotel site except to a specified extent. A lease dated
24 December 1873, of another plot of land on the road for a like term, made by the
same lessor but with another lessee, contained a similar covenant. In 1914 the lessor
conveyed to D, the assignee of the lease dated 24 December 1873, the freehold
reversion thereto subject to and with the benefit of the lease with the intent that it
should merge in the freehold. In 1948 the assignee of the lease dated 6 April 1872,
acquired the freehold reversion to that lease, and in 1949 the lease and the freehold
was conveyed to R, who declared that the lease should be extinguished. The
predecessors in title of the plaintiff company were not parties to the transactions
involving merger. The plaintiff company was the present owner in fee simple of the
hotel property, having acquired the property in 1952 with notice of the covenants in
the leases. The defendant was the successor in title to D and R. The plaintiff
company sought a declaration that the defendant was not entitled to enforce the
covenants against the plaintiff company.
o Held – The equitable burden of the restrictive covenants contained in the leases did
not survive the extinguishment of the terms demised, although the restrictive
covenants had been binding on the owners of the hotel site immediately prior to the
extinguishment and although the plaintiff company acquired the land with notice
of the covenants; the plaintiff company, however, not having been party to the
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transactions which extinguished the terms, was entitled, even if the mergers of the
terms had been per incuriam, to take advantage of the error and to a declaration
that the restrictive covenants were not enforceable by the defendants as owner of
the two plots of land.
o Cross J: “There is no doubt that the covenants by Le Strange not to build save as to
a specified extent on the hotel site “touched and concerned” the lands demised by
the two leases and were enforceable by the successive owners of the leases against
the successive owners of the reversions. There is also no doubt that when the
ownership of the hotel site became separated from the ownership of the reversions
the plaintiff, having purchased with notice of the covenants, became bound by them
in equity. At that stage, therefore, the tenants who were entitled to the benefit of
the covenants were entitled to enforce them against both the owners of the
reversion and the plaintiff, though of course they could obtain only damages against
the former.
o The question at issue is whether the remedy against the plaintiff was extinguished
with the leases.
o The plaintiff argued that as the conveyances of the respective freeholds to Rivett and
Davidson contained express declarations that the leases were to be extinguished,
they were not kept alive even in equity, and that no right to enforce the covenants
even in equity could continue to subsist independently of the leases in which they
were contained.
o The defendant, on the other hand, argued that though the leases no longer exist and
the covenants cannot be enforced against the owners of the freehold of the houses
since no one can sue himself, yet the equitable burden to which the plaintiff became
subject as purchaser with notice of the covenant was not thrown off by the
extinction of the leases, but that a corresponding right to enforce the covenants in
equity against the plaintiff remains attached to the houses until the date when the
leases would have expired, i.e., 29 September 1970. In support of this contention the
defendant referred to the decision of Malins, V-C, in Birmingham Joint Stock Co v
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Lea. In that case premises forming part of property held on a lease for ninety-nine
years at a rent of £75 had been under lease to the defendant for a term three days
shorter at a rent of £31 subject to a covenant against building. Later the defendant
purchased the reversion on his under-lease for £415 on the terms that he should be
granted a fresh under-lease for the length of the head term less one day at a rent of
£10, being the apportioned part of the head rent of £75. The new under-1lease recited
the old under-lease and was expressed to be subject to it. It was argued that the
defendant was no longer bound by the covenant in the old under-lease because that
was extinguished by the acceptance of the new under-lease for a longer term which
contained no such covenant, but Malins, V-C, held that though the old under-lease
was gone it was clearly part of the arrangement that the defendant should remain
subject to the covenant and that accordingly he remained bound by it in equity.
o I do not think that case affords any support for the contention of the defendant in
this case. The decision was based on the intention of the parties to the transaction
which resulted in the disappearance of the lease which contained the covenant, but
the plaintiff was not a party to the transactions in this case. It is possible, though no
doubt unlikely, that Mrs Davidson and Mr. Rivett intended to give up any right to
enforce the covenant in the respective leases against the plaintiff, and even if one
assumes—which is much more likely—that they did not so intend and that the
positive declarations that the lease should merge in the freeholds were inserted per
incuriam, there is nothing unconscionable in the plaintiff, who was not concerned
in the matter, taking advantage of the faulty conveyancing.
•
Where there is a merger of the term in the reversion, the head lessor becomes the
immediate reversioner of any existing sublease. The head lessor becomes entitled to the
benefits of the covenants in the sublease.
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NOTICE TO QUIT
•
A notice to quit is an unequivocal statement in writing evidencing an intention to
determine a periodic tenancy at the date indicated in the notice. It may be given by
either party to a tenancy.
•
The length of a valid notice to quit is to be determined with reference to the period
dictating the nature of the tenancy; e.g., weekly, quarterly, tenancy from year to year.
•
A notice to quit is an unequivocal notification by the landlord or a tenant to the other
that the person, giving reasonable notice to unilaterally determine a periodic tenancy,
including a tenancy from year to year, half-yearly, quarterly, monthly, or weekly
tenancies.
•
The expression notice to quit is equally applicable to a notice served by a landlord or a
tenant requiring him to quit the premises and to a notice served on a landlord by a
tenant stating that the latter person will quit the premises.
•
The exact period of notice is that which law, custom, contract or statute deems to be
reasonable in respect of any given tenancy.
•
Neither party need not have a reason for giving a notice to quit, just a desire to end or
terminate the tenancy.
•
Unless otherwise provided/stated, a notice to quit is only used to end/quit/determine
a periodic tenancy.
•
The notice to quit terminates the tenant’s estate in the premises, that is, it ends the
tenant’s interest. If the notice to quit is invalid, the relationship of landlord and tenant
subsists and as such all duties also subsist.
•
If a tenancy is created orally, an oral notice to quit is enough to terminate such interests.
Otherwise, it must be done in writing.
•
To be effective at law, the notice to quit must be valid in both:
1) Form and content;
2) Service.
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•
Notice to quit must give at least the minimum amount of time required at law. It must
be a clear number of days expiring on midnight of the before the commencement date
of the next period. A landlord can give more time than the minimum.
Tenancies from Year to Year
•
A tenancy from year to year does not require a full 12 months’ notice to quit.
•
Where a tenancy from year to year is created by express agreement, the general rule at
common law is that half a year’s notice must be given expiring at the end of a full year
of the tenancy. The same rule applies where a tenancy from year to year is implied by
law from the payment and acceptance of rent, or from other circumstances.
•
Where a tenant for a term of years holds over and continues to rent at a yearly rate,
there will be assumed to be a tenancy from year to year, determinable as aforesaid.
•
However, where a tenant holds over and pays rent as at a weekly rate only a weekly
tenancy will result. When serving notice to quit, the strict requirement is 182 days, but
the use of 6 calendar months is allowed. For annual tenancies alone, the expiry of the
notice may be either the commencement date or the day before, as long as 6 clear
months is given.
Commencement Date
Period of Notice (Date of Expiry)
Usual Quarter Days (Lady Day – March Next quarter day but one
250: Midsummer – June 24; Michaelmas –
September 29; Christmas – December 25
Any other intermediate day
182 days (to expire on anniversary date of
tenancy) Any notice to quit which expires
after the stipulated time is bad.
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•
Any notice to quit which expires after the stipulated time is bad.
•
Queen’s Club Gardens Estates Ltd. v. Bignell [1924] 1 KB 117:
o In order that a weekly tenancy may be determined by a notice to quit, the notice
must be one which expires at the end of a periodic week from the commencement
of the tenancy:
o A weekly tenancy ran from Saturday in each week to the same day in the next week.
The landlords on a Friday served upon the tenant a notice to quit, which was
expressed to be "the requisite weeks’ notice for the termination of your tenancy one
week from Monday next".
o Held: The notice to quit was invalid, inasmuch as it was not a notice expiring at the
end of the weekly term.
o Lush J.: “The tendency of modern decisions, however, has been to define a
reasonable notice to quit as being a week's notice. That in my opinion is the proper
view. I think that the law is that in the case of a weekly tenancy a week's notice to
quit is that which should be given, and I do not propose to occupy further time in
discussing the question of the proper duration of the notice. In the present case the
notice to quit, exclusive of the last words with which I have already dealt, was a
week's notice, and I think that, so far as its duration was concerned, it was sufficient.
o The second point - namely, whether the notice to quit must expire at the end of a
current week, or may be made to expire on any day the landlord or tenant chooses
to fix - is of a more serious character. The conflict of the authorities on that question
is a little surprising, and I will deal with them immediately. In the first place,
however, I am going to express my view upon this question without regard to
authority. With great respect to two of my learned brethren who have recently
decided this question in a way which is contrary to my opinion, I think the true view
is that in any periodic tenancy, whether it be yearly, quarterly, monthly, or weekly,
the notice to quit must expire at the end of the current period. It has been clearly
settled, as is admitted, that in the cases of a yearly tenancy and a quarterly tenancy
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the notice to quit must expire at the end of the current period, and that in either of
those cases it would be bad if it were made to expire in the middle of that period.
o The question is whether the same rule applies to a weekly tenancy, and, I may add,
to a monthly tenancy, for they both stand on the same footing as was held in
Simmons v. Crossley (1) by Swift J., I think quite correctly, Acton J., the other
member of the Court, expressing no opinion on that point. It seems to me to follow
from the nature of a weekly tenancy - and the same principle will apply in the case
of any other periodic tenancy - that the notice to quit must expire at the end of a
particular week. A weekly tenancy is a tenancy by the week, just as a quarterly
tenancy is a tenancy by the quarter. If the weeks’ notice to quit is not given so as to
expire at the end of a particular week, but at some other time, then another week
begins before the notice expires, and this must mean that another complete week
has begun. The tenancy being by the week, I do not see how it is possible for either
party to give a notice to quit to expire during the currency of a week. When a fresh
week begins the tenancy continues for another week, just as, in the case of a
quarterly tenancy, when a fresh quarter begins, the tenancy continues for another
quarter. In the case of Sandford v. Clarke (1) Wills J., when sitting as a member of
the Divisional Court, held, in the case of a weekly tenancy, that when a week expired
the tenant could go out without having given any notice to quit. The learned judge
recalled that judgment, however, and held that it was wrong in the latter case of
Bowen v. Anderson. (2) I am inclined to think that he held in the latter case that it
is only at the end of a week that the tenant may go out, or may be ordered to go out,
and not during the weekly period.
o However, that may be, in my view, apart from authority, when a new week is entered
upon it is for the complete week, and the tenant can only leave or the landlord turn
him out when a complete week expires. On any other view I find the greatest
difficulty in knowing what is to become of the rent. The rent is only due at the end
of the week. Supposing that in a weekly tenancy which commenced on a Saturday
the landlord or the tenant gives notice to quit on a Wednesday, is the tenant to pay
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rent from the Saturday to the Wednesday or not? The rent would not be
apportionable. In Oldershaw v. Holt (3) Coleridge J. expressly held, and I do not
think that the other members of the Court differed from him, that the
Apportionment Act then in force, 4 & 5 Will. 4, c. 22, s. 2. did not apply to a case
between landlord and tenant, but only where the rent was to be divided as between
tenant for life and remainderman The Apportionment Act, 1870 (33 & 34 Vict. c. 35),
is for this purpose substantially the same as the former Act. Before any
Apportionment Act had been passed the difficulty would have arisen as to what
would happen about the rent when notice to quit was given during the currency of
a week or other period, and that was pointed out in the case to which I have just
referred. I do not see what is to happen to the rent in the case of a weekly tenancy if
the landlord or the tenant can determine the tenancy in the middle of a week. Apart
from authority, my own view, therefore, is that all these periodic tenancies stand on
the same footing, and that, in the case of a weekly tenancy, if either party wishes to
give notice to quit, he must take care that it is a notice which expires at the end of a
week, unless of course the parties have agreed otherwise. If the party who desires to
give notice is doubtful as to the day on which the period expires, he can make sure
that the notice will be valid by adding the words that are given in the common form
of notice to quit to the effect that if the date mentioned is not the real date on which
the period expires, then the notice to quit is to expire on the proper day of expiry
next after the expiration of the current period.
Quarterly, monthly and other periodic tenancies
•
Where the period of the tenancy is less than a yearly, the general rule at common law
is that the length of notice corresponds to the period of the tenancy.
•
Thus, a weekly tenant’s notice, given on the day corresponding to that on which the
tenancy began. In the absence of express or implied term to the contrary, it is not
necessary that there should be seven clear days’ notice: it is possible to include the day
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upon which the notice is served and expires into the period. If, however, a week’s notice
is required by an express term of the tenancy, a clear seven days’ notice, must be given.
•
Pollonais v Gittens
o Monthly tenancy commenced on 3 April 1969. On 10 February 1973, the landlord
served a notice to quit ‘at the end of one full month which will expire on 9 March.’
The Court of Appeal held that the notice was invalid, because the date of expiry of
the notice was not the end of a current period of the tenancy, which ran from the
3rd of each month to the 3 rd of the following month.
•
Precious v Reedie
o To determine a monthly tenancy, a notice to quit must correspond in length with
the period of the tenancy and must terminate on the date of the month on which
the tenancy began, unless there was some agreement to the contrary.
•
Mohammed v Radoo
o The tenancy commenced on the 11th of the month. On 22 July 2003, the landlord
served a notice to quit on 11 September, or at the end of the next complete period of
the tenancy.
o Mendonca JA: What the law in Pollonais requires is that the tenant must be given
at least one month’s notice to determine the tenancy and not exactly one month.
•
Hernandez v Rewan
o The monthly tenancy ran from the 1 st day of the month. On 27 August 1998, the
landlord served a notice to quit dated 26th August 1998, to quit on the 1 st of
September 1998, or the next complete month of tenancy.
o Jamadar J: The notice in effect contained two options; (1) notice expiring on 1st
September was void, as less than a clear one month’s notice was given, (2) the notice
expiring after one month’s tenancy was valid, as a ‘saving option,’ which was
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‘standard alternative that saves a notice in the event that a first and specific option
is for some reason invalid.
Generally
•
A notice to quit expires at midnight on the date on which it is deemed to expire. The
notice will be valid if it is expressed to expire on the last day of the contemplated period
or on an anniversary of its commencement.
•
Sidebotham v Holland [1895] 1 QB 378
o By an agreement in writing the plaintiff agreed to let a house to the defendant as
yearly tenant "commencing on the 19th of May, 1890," an apportioned part of the
rent up to June 24 next to be paid at once, and the future rent to be paid quarterly
in advance on the usual quarter-days. On November 17, 1893, the plaintiff gave the
defendant notice to quit on May 19 following; and subsequently brought an action
to recover possession of the premises. The defendant disputed the validity of the
notice to quit, and also set up an oral agreement made in December, 1892, that the
tenancy of the house should not be terminated till November, 1895. The plaintiff in
reply pleaded the Statute of Frauds. Held: The tenancy must be taken to have
commenced on May 19, and not on June 24; that the day mentioned in a demise as
the commencement of the tenancy is the first day of the term, whether the
expression used to be "on" the day specified or "from" that day; and consequently,
that a notice to quit on May 18 would have been good. But held, that the notice to
quit on May 19 was also good, that being the anniversary of the commencement of
the term:
o Held: Also, that the oral agreement to continue the tenancy beyond a year was
invalid under the Statute of Frauds, there being no fresh demise.
•
A notice is expressed to expire at a particular time on an expiry date, for example at
noon, is bad.
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•
A notice to quit expressed ‘on or before’ or ‘by’ a certain date is valid if given by the
landlord, but void if given by the tenant.
•
Dagger v. Shepherd [1946] KB 215
o A notice given by the landlord to the tenant to quit "on or before" a fixed date is
prima facie valid and effective. The effect of such a notice is, first, to give the tenant
notice to determine the tenancy on the date named and, second, to make the tenant
an offer to accept a determination of the tenancy on any earlier date of the tenant's
choice, on which the tenant should give up possession of the premises: The plaintiff,
Mrs. W. A. M. Dagger, was the landlord of a house known as "Kenwood," Poole Road,
Wimborne, Dorset, of which the defendant was tenant. By a tenancy agreement
dated March 28, 1939, the plaintiff let the premises to the defendant for one year
from March 25, 1939, at 50l. a year, with an option to the tenant, on giving three
months' notice, to continue the tenancy as a quarterly tenancy. The tenancy was so
continued, but towards the end of 1944 the plaintiff required the house for her own
occupation. On December 20, 1944, the plaintiff's solicitors wrote to the defendant
a letter in which they said: "On behalf of our client, Mrs. W. A. M. Dagger, we hereby
give you notice to quit 'Kenwood' on or before the 25th March next. As we have
already informed you, Mrs. Dagger requires possession of the house in order to
occupy it herself with members of her family." The defendant failed to give up
possession of the house on March 25, 1945, and the plaintiff thereupon brought this
action, claiming possession and mesne profits.
o At the hearing at Poole county court, it was contended for the defendant that the
notice to quit on or before March 25 was bad for uncertainty. The judge upheld that
contention and gave judgment for the defendant, observing that he and others had
decided that point before. The Plaintiff appealed.
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FORM AND CONSTRUCTION OF NOTICE TO QUIT
A valid notice to quit must –
i.
be reasonably clear and certain;
ii.
relate to the whole of the demised premises.
•
A notice to quit will not be invalidated by minor factual inaccuracies.
•
The form of the notice is not prescribed by law and if the tenancy was created orally,
the notice may be given orally.
•
The notice may expressly state the date on which it is to expire or it may refer to the
date in general terms. E.g.: “at the expiration of the present year’s tenancy’; ‘at the end
of the last quarter of this year”.
•
Notice to quit “on or before” or “by” a certain date are sufficiently certain and are valid.
o Allam & Co Ltd v Europa Poster Services [1968] 1 All ER 826
▪
The plaintiff companies (a parent company and two wholly owned subsidiaries)
had agreements with site owners under which one or other of the plaintiff
companies had erected and maintained on the sites display boards or other
display equipment for advertising purposes. These agreements were for fixed
terms, but were subject to termination by twelve months' notice on either side,
and in a number of cases continued after the expiry of the terms. The defendant
company, a competitor in advertising, approached many of the site owners and
obtained agreements with them. These provided, among other matters, for the
site owner to terminate any other advertising licence agreement; and the
defendant company obtained, either by a separate document or as a term of their
agreements, authority from site owners to determine such other licence
agreements so soon as lawfully possible. On May 7, 1965, the defendant
company's solicitors wrote a letter addressed to the parent plaintiff company
"and associated companies", enclosing a list of some 218 sites, giving formal
notice "to cease occupation of the sites referred to at the earliest date after the
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service of this notice that such agreement" (i.e., each of the plaintiff companies'
agreements with site owners) "... can lawfully be terminated". On May 14, 1965,
each of the plaintiff companies wrote a letter to each of the site owners referred
to in the list enquiring whether the defendant company had the site owner's
authority. On Aug. 18, 1965, the defendant company gave similar notice in
respect of 243 sites, including the 218 comprised in the notice of May 7, the letter
being addressed in this instance to each plaintiff company and signed by a
director of the defendant company. On the question whether the notices of May
7 and Aug. 18 were effectual to bring to an end the pre-existing agreements
between the plaintiff companies and owners of various sites.
▪
Held: The notices of May 7, 1965, and of Aug. 18, 1965, were valid and effective
notices in respect of the properties to which they referred for the following
reasons: - The qualification in respect of possible new agreements, which is
stated at p. 839, letter I, post, is not reflected in the statement above, which
endeavours to state only the legal decision and the reasons for it.
▪
(i) there should be no difficulty in relation to each of the various properties to
which either composite notice referred in ascertaining the date for termination,
although the day and month were not specified in respect of any particular
property; and accordingly, the notices were sufficiently certain.
▪
(ii) as an incorporated company must act through agents, the defendant
company, though deriving its authority from the site owners and being their
agent for the purpose, could validly give notice of termination by a letter or
notice signed by its solicitors, as distinct from one of its directors, since the
solicitors were clearly acting in the present case on the instructions of the
defendant company and were performing a purely ministerial act in
communicating the notice.
▪
(iii) the notice of May 7, 1965, must, on the facts, have reached the subsidiary
plaintiff companies and thus was sufficiently given to them, though addressed
to the parent plaintiff company "and associated companies".
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▪
Buckley J: “The reference there to the right date is a reference to the date from
which the notice to quit was intended to operate. By analogous reasoning a
notice given by or on behalf of one party to a contract intending to bring that
contract to an end, whether it be a contract of tenancy or a contract of some
other kind, must be sufficiently clear and unambiguous to convey to the party to
whom it is given precisely how it is intended to operate, and when it is intended
to operate. It is on grounds of this kind that these notices are attacked.”
o Addis v Burrows [1948] 1 All ER 177
▪
By an agreement, dated February 14, 1944, the plaintiffs let premises at the yearly
rent of 250l. to the defendant "from the 1st day of January, 1944, to the 30th day
of June, 1945, for the term of one year and so on from year to year until the
tenancy be determined at the end of the first or any subsequent year by one of
the parties giving to the other of them six calendar months previous notice in
writing." The agreement was on a printed form with the words "from the 1st day
of January, 1944, to the 30th day of June, 1945," typed in. On June 28, 1945, the
plaintiffs gave the defendant notice to quit "at the expiration of the year of your
tenancy, which will expire next after the end of one-half year from the service of
this notice." The defendant not having yielded up possession the plaintiffs
brought proceedings on March 21, 1947, by which they claimed that under the
notice to quit the tenancy had ended on June 30, 1946. Held: (1.) that on its true
construction the tenancy granted was for eighteen mouths certain and thereafter
on a yearly tenancy. (2.) That the notice to quit was not invalid as being too
vague. (3.) That the tenancy therefore came to an end on June 30, 1946. Per Lord
Greene M.R: The broad proposition laid down in Foa on Landlord and Tenant
(7th ed.), p. 602, to the effect that a notice to quit worded so as to leave the
recipient in doubt when possession will be demanded "(e.g., by having to solve
difficult questions of law)" will be invalid, is not a proposition to be extracted
from Phipps v. Rogers. The most commonly approved form of words are as
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Christiane R. Dookie
follows: ‘at the end of the year of the tenancy which will expire next after the end
of one-half year from the date of the service of this notice’.
▪
The best practice in the construction of a notice to quit is to mention as its
expiration date, the anniversary date of the tenancy followed by the above
general words in the alternative. This practice prevents an error in respect of the
anniversary date from invalidating the notice.
•
The most commonly approved form of words is as follows: ‘at the end of the year of the
tenancy which will expire next after the end of one-half year from the date of the service
of this notice.’
•
The best practice in the construction of a notice to quit is to mention as its expiration
date, the anniversary date of the tenancy followed by the above general words in the
alternative. This practice prevents an error in respect of the anniversary date from
invalidating the notice.
o Sidebotham v Holland Supra at p 389
▪
By an agreement in writing plaintiff agreed to let a house to defendant as yearly
tenant ‘commencing on 19 May 1890,’ an apportioned part of the rent up to 24
June next to be paid at once, and the future rent to be paid quarterly in advance
on the usual quarter days. On 17 November 1893, plaintiff gave defendant notice
to quit on 19 May following, and subsequently brought an action to recover
possession of the premises. Defendant disputed the validity of the notice to quit,
and also set up an oral agreement made in December 1892, that the tenancy of
the house should not be terminated till November 1895. Plaintiff in reply pleaded
Stat Frauds, s 4: Held the oral agreement to continue the tenancy beyond a year
was invalid under Stat Frauds, there being no fresh demise. It is familiar law that
whether an agreement operates as a demise or as an agreement only depends on
the intention of the parties (Lindley, LJ). (1) In determining tenancies
commencing at a particular time, the expressions ‘at,’ ‘on,’ ‘from’ or ‘on and from’
are equivalent expressions. (2) A notice to determine a yearly tenancy ought to
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expire on the last day of the current year; nevertheless, a half year’s notice to quit
on the anniversary of the day on which the tenancy commenced is a valid notice.
▪
H became yearly tenant of S under an agreement dated 19 May 1890, such yearly
tenancy ‘commencing on 19 May, instant.’ On 17 November 1893, S gave written
notice to H to quit and deliver up ‘possession to him on 19 May, next’ of the
premises: Held such notice to quit was a valid notice; the tenancy commenced
on 19 May, and would be determined at midnight of 18 May. A notice to quit on
18 May, would equally have been a good notice. The express statement in this
agreement that the tenancy is to commence on 19 May, is too clear and
unambiguous to warrant any inference which might otherwise have been drawn
from the stipulation that the rent is to be paid by equal quarterly payments, in
advance if demanded, on the usual quarter days (Lindley, LJ). Plaintiff has only
himself to blame for the difficulties he is in in this case. Had he added the words
which are very ordinarily inserted in a notice to quit, ‘or at the expiration of the
year of your tenancy, which shall expire next after the end of one-half year from
the service of this notice’ … all would have been in order (Smith, LJ).
SERVICE OF NOTICE TO QUIT
•
The notice to quit must be:
i.
given by either landlord or tenant to the other or by their duly and specifically
authorised agents;
ii.
it may be served –
a) personally;
b) by registered post;
c) by ordinary post; or
d) by leaving it at the tenant’s house.
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•
Where the notice is served at the tenant’s house on his spouse, or servant, there is a
rebuttable presumption that the tenant has received the notice. This presumption can
only be rebutted by proof that the notice did not come to the tenant’s notice at all.
o Tanham v Nicholson (1872) LR 5 HL 561
▪
T. lived in a house where his two sons and his daughter also resided. T. was
imbecile. The house was managed by his daughter, the farming business by his
two sons. A notice to quit, addressed to the father, was served at the house by
delivery to the daughter. She put it on the dresser in the kitchen, and afterwards
burnt it. One of the sons knew of its existence, but was not shewn to have known
its exact terms, though he was aware of its nature.
▪
Held: This was a service sufficient to entitle the landlord to maintain ejectment
against the father. The service of a notice to quit made at the house of the tenant
upon a person whose duty it would be to deliver the notice to the tenant, is
sufficient to sustain ejectment, although in fact the notice was never delivered
to the tenant. The presumption in such a case is that it did reach the tenant
himself. In such a case the question is not whether the servant performed his
duty in delivering it to his master, but whether the servant was to be considered
as the agent of the master to receive the notice. If he was, the service of the notice
will effectually bind the master.
▪
Per the Lord Chancellor (Lord Hatherley): The fact that the agent who received
the notice destroyed it would liberate entirely the person who delivered the
notice, but would not liberate the person whose agent had received and
destroyed it. Per Lord Westbury: - Where there has been service of a notice to
quit left at the tenant's house with a servant of the tenant, such a fact is more
than presumptive evidence of a service on the tenant. The landlord's right would
otherwise be controlled by something to which the landlord was an utter
stranger.
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Christiane R. Dookie
▪
Per Lord Westbury: But even if only presumptive evidence of the service, the
evidence to rebut it must be proof of the fact that the notice did not come to the
knowledge of the tenant at all.
o Ramlal v Chong (1990) Court of Appeal, T&T, Mag. App. No. 107 of 1989
(Unreported)
▪
McMillan JA: ‘A notice to quit need not be served on a tenant personally. It may
be served on a person constituted the agent of the tenant for the purpose of
receiving the notice.’ Accordingly, service on a servant of the tenant at the latter’s
residence or on someone left in control of the premises would be sufficient.
o HV Holdings Ltd v Jumadeen (1988) High Court, T&T, No. s.2483 of 1986
(Unreported)
▪
Blackman J: Service of notice to quit on a member of the tenant’s household,
such as the tenant’s common law wife, was sufficient.
o Williams v CLICO
▪
Alexander J: Notice may be served on a person expressly appointed as agent to
receive the notice, or to a member of the tenant’s household, such as his wife or
servant. The presumption can only be rebutted by proof that the notice did not
come to the knowledge of the tenant at all.
o Mc Quilkin v Duprey (1963) 6 WIR 122
▪
The appellant carried on a dressmaking business in premises rented form the
respondent. One P, on the respondent’s directions, went to the premises to serve
the appellant with a notice to quit. The appellant was absent, so he handed the
notice to ‘the lady in charge’ of the premises.
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Christiane R. Dookie
▪
It was held by the TT Court of Appeal that there was a presumption of fact that
the notice had come to the knowledge of the appellant, and since the
presumption had not been rebutted, the notice would be deemed to have been
duly served.
WITHDRAWAL
•
A notice to quit may not be withdrawn during its currency except by the consent of
both parties.
o Davies v Bristow et al [1920] 3 KB 428 @ 437-8
▪
The expression "waiver" in connection with the service of a notice to quit,
although in many cases it may be convenient as a mode of describing the position
when landlord and tenant agree that a notice to quit should be inoperative and
that they shall both proceed as if no notice had been given, is quite inaccurate
as a statement of the legal position, and if an attempt is made to build a
proposition of law on the strength of it, it is an expression calculated to lead one
astray. When once a notice to quit has been given and received the term
automatically comes to an end on the expiration of the notice, and the position
is precisely the same as it would be if the original lease had provided for the
determination of the term on the date mentioned in the notice to quit. There is
no room for any election by the landlord. The landlord and tenant may agree
that a new tenancy shall be created on the old terms, and that is what, in effect,
they do when they agree to treat the notice to quit as inoperative, or, to use the
expression so often used, to "waive" the notice. The agreement for the new
tenancy must be proved in the way in which any agreement is proved.
•
However, such withdrawal does not nullify the notice but may operate as evidence of a
new tenancy agreement between the parties. The acts of the lessor will be looked at to
see whether as a question of fact a new tenancy was created for example by the
acceptance of rent after the notice to quit.
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o Clark v Grant [1949] 1 All ER 768
▪
A yearly tenant of a dwelling house at a rent payable monthly in advance,
received a valid notice to quit expiring on April 30, 1948. Early in May, 1948, the
tenant paid one month’s rent in respect of the month of May, 1948, to the
landlord’s agent, who accepted it in the belief that it was rent payable in arrear
for the month of April, 1948. In an action by the landlord for possession.
▪
Held: The acceptance by the landlord of rent in respect of a period after the
termination of the tenancy by the notice to quit did not operate as a waiver of
the notice, and the landlord was entitled to possession. “The principle whereby
a landlord’s acceptance of rent from a tenant, after the latter has incurred
liability to forfeiture of the lease through breach of covenant, operates to waive
the right of forfeiture has no application where the landlord has given notice to
quit and thereafter accepts rent from the tenant. In such a case the acceptance
of rent has no effect on the notice to quit unless it be established that it was the
intention of the parties, by paying and accepting the rent, to create a new
tenancy. Where, therefore, after a yearly tenancy had been duly determined by
notice to quit, the landlord’s agent accepted rent from the tenant because he
mistakenly believed it to be paid in arrear and so referable to a period before the
end of the lease whereas the tenant was purporting to pay it in advance in
accordance with the terms of the lease:
▪
Held the acceptance of rent did not operate to revoke the notice to quit in the
absence of evidence of any intention to create a new tenancy.”
▪
Goddard LCJ: If proper notice to quit has been given in respect of a periodic
tenancy, the effect of the notice is to bring the tenancy to an end just as
effectively as if there has been a term which has expired. Therefore, the tenancy
having been brought to an end by a notice to quit, a payment of rent after the
termination of the tenancy would operate in favour of the tenant only if it could
be shown that the parties intended that there should be a new tenancy.
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o Lee Kim v Cumana Consumers Co-operative Soc. Ltd (1984) High Court, T&T,
No. 2109 of 1981 (Unreported)
▪
The landlords served a valid notice to quit on the tenant on 30 March 1979. The
tenant remained in possession, asking for two extensions of time, which were
granted. Finally, 20 March 1981, the landlords served a second notice to quit
requiring possession on or before 30 April 1981. When the tenant failed to vacate
the premises, the landlords brought proceedings for possession.
▪
Collymore J held that Lowenthial v Vanhoute was authority for the proposition
that, were a valid notice to quit has been given, a subsequent notice is of no effect
unless it can be inferred from other circumstances that a new tenancy has been
created after expiry of the first notice. An agreement to grant a new tenancy
cannot be inferred from the fact that a second notice to quit was given; nor is the
first notice waived by the second. In the instant case, no new tenancy had come
into being; the tenant had merely been granted the indulgence of more time to
find alternative accommodation. The clear inference from the parties’ conduct
was that the tenancy had been terminated by the first notice in 1979, and the
second notice in March 1981 was therefore superfluous, as far as the termination
of the tenancy was concerned; its only effect was to bring to the notice of the
tenant that the landlords intended to pursue their right to possession by legal
action, and the granting of the indulgence could not defeat that right.
o Lowenthial v Vanhoute
▪
Collymore J: Where a valid notice to quit has been given, a subsequent notice is
of no effect unless it can be inferred from other circumstances that a new tenancy
has been created after expiry of the first notice. Thus, the acceptance of rent by
the landlord subsequent to the notice did not detract from the effectiveness of
the notice. Therefore, payment of rent after the termination of a tenancy would
operative in favour of the tenant only if it is shown that the parties intended that
there should be a new tenancy.
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Christiane R. Dookie
•
A second notice to quit given after the expiration of the first is of no effect unless it can
be inferred from other circumstances that a new tenancy was created which could be
determined by the second notice.
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FORFEITURE
Relevant Legislation
•
Real Property Ord.Ch. 27, No. 16, s. 5
•
S 68, 70 of Conveyancing and Law of Property Ordinance Ch 27 No 12
o Section 68(1)
▪
Where a license is granted to a lessee to do any act the licence only extends to
the precise act that is stipulated or the specific breach of any provision or
covenant referred to allowed by the permission in the license
o Section 68(2)
▪
The license is not a bar to the exercise of powers and rights of re-entry contained
in the lease due to a subsequent breach of covenant. - The license only applies
to the specific act referred to, not to the other conditions and covenants. The
right of re-entry remains intact for the rest of the conditions.
o Section 68(3)
▪
Where there is more than one lessee, e.g. A and B and there is granted a license
to A to allow a specific act respecting his own equitable share, the license
pertains to that A alone and not B. - The right of re-entry or forfeiture still stands
with respect to B’s share or interest in the property.
o Re-entry by L is necessary to determine a lease by forfeiture.
o Section 70(1):
▪
A right of re-entry or forfeiture for breach of covenant under the provisions of
any lease is not enforceable unless and until the landlord serves on the lessee a
notice:
▪
Specifying the breach complained of: Landlord must draw Tenant’s notice to the
particular things complained of and give T reasonable time and opportunity to
remedy. Must be reasonably clear to T what are the matters complained of.
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Christiane R. Dookie
▪
A vague description of a breach does not render a notice ineffective if there are
other properly specified breaches.
▪
Where a notice alleges a non-existent breach, the notice is not invalidated if a
valid reason for forfeiture is also stated.
▪
Requiring the lessee to remedy the breach if possible: need not tell T what to do
or how to remedy the breach. A directive to “examine and repair a given part of
the premises, e.g., will suffice.
▪
Remediability: Negative covenants are generally remediable.
▪
If L seeks to forfeit based on a remediable breach, his notice must require T to
effect a remedy, otherwise it will be void. (not so for requiring remedy for nonremediable breach).
▪
Requiring the lessee to compensate for the breach in any case.
▪
If the lessee fails to remedy the breach in a reasonable time after service of the
statutory notice, the landlord’s right of re-entry becomes enforceable.
o Section 70(2)
▪
Tenant’s right of relief against forfeiture: Tenant who is subject to the exercise
of the L’s right may apply to the court for relief against forfeiture. - The court
may grant or refuse relief depending on the conduct of the parties and the
circumstances. - L’s relief for breach of covenant includes costs and expenses,
damages, compensation, penalty and also the grant of injunctions to restrain like
breaches in future.
o Section 70(3)
▪
Remedies of forfeiture of tenant’s lease on an undertenant: Where a lease is
forfeited, the relationship of L and T b/w superior landlord and landlord is
broken. However, the undertenant may apply to the court under s 70(3) to make
an order vesting the property comprised in the lease to him for its entire
remaining term or less.
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o Section 70(7) and (9)
▪
the law relating to forfeiture procedure and conditions as above does not apply
to: i. Any covenants or conditions against subletting, assigning or parting with
possession or disposing of the leased land; ii. The covenant to pay rent.
Right of Forfeiture
The right of forfeiture on the part of a landlord will arise where:
i.
the lease contains a forfeiture clause allowing the landlord to avoid the lease and reenter upon breaches of covenant by the tenant;
ii.
•
there is a breach of condition (but not covenant) by the tenant.
In order for the right to forfeiture to arise upon breach of a tenant’s covenant, express
provision for re-entry must be made in the lease. The proviso makes the lease voidable
by the landlord. Thus, even though the right to forfeiture arises, the tenancy continues
until the landlord performs an act which evinces his intention to terminate the tenancy.
o Canas Property Co Ltd v KL Television Services Ltd [1970] 2 All ER 795
▪
•
L must serve writ, not just issue it. L may also grant lease to another T.
The landlord can still take action to recover rent accrued prior to forfeiture and against
other breaches of covenant.
•
Forfeiture destroys the rights of under tenants.
o Official Custodian for Charities v Mackey [1985] 3 All ER 689 p 693-4 c-d
▪
Where a company sublet property and were in breach of covenant against
liquidation, the plaintiff SL sought a declaration that they were entitled to the
benefit of unencumbered ownership. Third party creditors took rent of
undertenant in the stead of the tenant company, whereas the SL were held to be
entitled to those benefits. All interests derived under the lease, (e.g., the
mortgages of the creditors who were taking the rent) and subleases, are
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Christiane R. Dookie
extinguished on determination of the lease. P was entitled to immediate
enjoyment of the fruits of unencumbered ownership.
•
No express proviso for re-entry is required where an event specified as a condition
subject to which the term was created occurs.
o Doe d Lockwood v Clarke (1807) 8 East 185
•
Whether an instrument creates a covenant or condition turns on the intention of the
parties to be gleaned from the document as a whole.
o Bashir v Crown Lands Comr [1960] 1 All ER 117
▪
Heading marked “Special Conditions” did not render a provision mandating the
completion of a building in a time period a condition. It was in the nature of a
contractual obligation, and therefore had the nature of a covenant. A stipulation
in a lease can have dual character; the turning factor is the intention of the
parties.
RIGHT OF RE-ENTRY
A: Breach of the covenant to pay rent
•
Re-entry by the landlord is necessary to determine a lease by forfeiture. Where the
breached covenant is for the payment of rent, he must first make a formal demand for
rent.
o Doe d Chandless v Robson (1826) 2 C & P 245
•
The requirement for the formal demand for rent may be dispensed with by agreement
between the parties. Such an intention is usually evidenced by use of the words
“whether formally demanded or not”.
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Christiane R. Dookie
•
The bringing of an action for possession is a sufficient ‘act of re-entry’.
o Ashton v Sobelman [1987] 1 All ER 755
▪
Where L sought to re-enter after non-payment of rent, L’s actions of re-entry in
changing the locks were overridden by the continuance of an underlease. Such
continuance was held to be inconsistent with the intention to determine the
lease which therefore subsisted as there was no forfeiture.
B: Breach of other covenants
•
Legislation provides in some of the territories that notwithstanding a forfeiture clause
in the lease, the landlord must comply with certain statutory stipulations, including the
service of a notice, before exercising his right of re-entry.
•
Trinidad & Tobago - Section 70, Conveyancing and Law of Property Ord, Ch 27 No 12
•
•
The statutory notice must do the following:
o specify the particular breach complained of;
o if the breach is capable of remedy, require the lessee to remedy the breach;
o require the lessee to make compensation in money for the breach.
•
Where the lessee fails to comply with (ii) and (iii) above (if the breach is capable of
remedy) the lessor may proceed with his forfeiture action.
•
Jackson v Simons [1923]1 Ch 373
o A licence to use part of demised premises does not constitute an underletting, in
that it does not confer any estate or interest in land. Conveyancing and Law of
Property Act 1881 (c 41) s 14(6), does not include a lessee’s covenant against sharing
the possession of the demised premises, and a lessor cannot, therefore, enforce his
right of re-entry in respect of the breach of such a covenant without serving on the
lessee the notice prescribed by the sub-section.
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Remediability of the Breaches
•
Where the covenant breached is a ‘negative’ one the law is generally that it is not
capable of remedy.
•
Where a breach is capable of remedy, three months is usually regarded as a reasonable
time for the tenant to comply with the notice.
•
Scala House District Property Co Ltd v Forbes [1973] 3 All ER 308
o Where the breach is incapable of remedy such as where there has been a breach of
a covenant against immoral user and a stigma has attached to the premises, the
lessor may proceed to forfeit the lease after 14 days.
Relief Against Forfeiture
•
Where a notice is served in accordance with the above sections, the tenant may, upon
receipt, apply to the court for relief against forfeitures.
•
The court has an almost unfettered discretion in deciding whether or not to grant such
relief to the tenant (or any undertenants) having regard to the conduct of the parties
and any other circumstances it may deem relevant.
o Hyman v Rose [1912] AC 623 @ 631 per Lord Eldon, L.C.
▪
Converting a chapel to a cinema, with promise secured by a deposit to reconvert at the end of the lease was not a breach of covenant where the use as a
cinema was not prohibited by the lease. As there was no breach, and as the
purchasers had offered compensation, relief was granted.
▪
I desire in the first instance to point out that the discretion given by the section
is very wide. The Court is to consider all the circumstances and the conduct of
the parties. Now it seems to me that when the Act is so express to provide a
wide discretion, meaning, no doubt, to prevent one man from forfeiting what
in fair dealing belongs to someone else, by taking advantage of a breach from
which he is not commensurately and irreparably damaged, it is not advisable to
lay down any rigid rules for guiding that discretion. I do not doubt that the rules
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enunciated by the Master of the Rolls in the present case are useful maxims in
general, and that in general they reflect the point of view from which judges
would regard an application for relief. But I think it ought to be distinctly
understood that there may be cases in which any or all of them may be
disregarded. If it were otherwise the free discretion given by the statute would
be fettered by limitations which have nowhere been enacted. It is one thing to
decide what is the true meaning of the language contained in an Act of
Parliament. It is quite a different thing to place conditions upon a free discretion
entrusted by statute to the Court where the conditions are not based upon
statutory enactment at all. It is not safe, I think, to say that the Court must and
will always insist upon certain things when the Act does not require them, and
the facts of some unforeseen case may make the Court wish it had kept a free
hand.
▪
In this particular case there have been breaches of covenant as to which there
is no doubt that they must be remedied as a condition of relief, but the real
dispute relates to certain alterations which have been effected and are insisted
upon by the appellants for the purpose of turning this chapel into a place of
public entertainment.
o Billson v Residential Apartments Ltd [1992] AC 494
▪
: In May 1989 the residue of the term of a lease of premises due to expire in 1997
was assigned to the appellant company. The lease included a covenant by the
tenant not to make any alteration or addition to the demised premises without
the prior written consent of the lessors and a proviso for re-entry and forfeiture
in the case of breach of covenant. In breach of that covenant the appellant
embarked on substantial alterations to the premises without the consent of the
respondent freehold reversioners and lessors. On 4 July 1989 the respondents
served on the appellant a notice under s 146 of the Law of Property Act 1925
requiring the appellant to remedy the breaches but the appellant failed to take
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any action to do so. At 6 am on 18 July the respondents’ agents peaceably reentered the property, which was then vacant, and changed the locks. Four hours
later the appellant retook possession of the property. The respondents issued a
writ claiming possession of the premises, while the appellant counterclaimed
for relief against forfeiture.
▪
The judge and, on appeal, the Court of Appeal held that the court had no
jurisdiction to grant the appellant relief against forfeiture under s 146(2) of the
1925 Act because the appellant had not applied to the court for relief prior to
the re-entry into possession by the respondents on 18 July and thereafter the
respondents were not “proceeding, by action or otherwise” to enforce their
rights of re-entry or forfeiture but had in fact already succeeded in enforcing
them with the result that the statutory right to relieve the tenant against
forfeiture was lost.
▪
The appellant appealed to the House of Lords: Held a tenant could apply for
relief against forfeiture under s 146(2) of the 1925 Act after the landlord had
forfeited by re-entry without first obtaining a court order for that purpose, since
the tenant could apply for relief where the landlord was “proceeding” by action
and also where the landlord was proceeding “otherwise” than by action, i.e.,
where the landlord was proceeding to forfeit by re-entry after the expiry of a s
146 notice. Accordingly, s 146(2) enabled the tenant to apply for relief whenever
and however the landlord claimed that the lease had been determined for
breach of covenant. The court therefore had jurisdiction to grant the appellant
relief from forfeiture and the appeal would accordingly be allowed.
▪
Per curiam: An order against an applicant for costs on an indemnity basis should
not be made as a condition of granting relief against forfeiture of a lease, since
indemnity costs encourage lawyers and surveyors and other advisers to charge
large fees, there is no inducement to the landlord to compromise his dispute
with the tenant and there is no reason why an unsuccessful applicant for relief
should be in any worse position than any other unsuccessful litigant.
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o Re Brompton Securities Ltd No 2 [1988] 3 All ER 677
▪
The respondent was the lessee of premises of which it had granted an
underlease to B Ltd (the company). P guaranteed the performance of the
company's obligations under the underlease. The respondent experienced
difficulties in recovering rent under the underlease and had to bring a number
of actions against the company and P in order to recover payment of the rent.
An order for the winding up of the company was made and subsequently the
respondent obtained a default judgment for nonpayment of rent by the
company. Shortly before that judgment was given, the liquidator of the
company agreed to sell the underlease to P and also agreed to do all things
required to obtain relief against forfeiture of the underlease. The respondent
subsequently obtained an order for possession of the leased premises.
Eventually all arrears of rent were paid to the respondent and the liquidator
applied for relief against forfeiture of the underlease. The issues before the court
were (1) whether an order granting relief against forfeiture should be made and
(2) whether such an application for relief could appropriately be made by a
summons in the winding-up proceedings
▪
Held – (1) Save in exceptional circumstances the court would grant relief against
forfeiture to a tenant on payment of all rent in arrears and costs,
notwithstanding that the tenant had in the past been a bad payer. It was not an
objection to granting relief against forfeiture that the company was insolvent
and held the lease as bare trustee for P, since once the arrears of rent had been
brought up to date, as they had, the respondent was in no different position
from any other lessor with an impecunious tenant. Accordingly, the court would
grant relief against forfeiture (see p 680 f to p 681 a, post).
▪
(2) Where application for relief against forfeiture was made on behalf of a
company which was being wound up, there was no reason why the application
should not be made by way of summons in the winding up. Accordingly, the
application had been properly made. “The question has been raised whether or
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not the application for relief against forfeiture can properly be made, or is
appropriately made, by a summons in winding-up proceedings. I will return to
this point later. I think it will be convenient to deal first with the substantial
question whether Brompton has established grounds for relief. It is trite law
that, save in very exceptional circumstances, the court will grant relief against
forfeiture to a tenant on payment of all rent in arrears and costs, and will do so
notwithstanding that actions have had to be brought on previous occasions to
recover the rent. The court may refuse to grant relief against forfeiture if the
parties have altered their position in the meantime and, in particular, where the
rights of third parties have intervened relief ought not to be granted where the
effect of it would be to defeat the new rights of third parties or be unfair to the
landlord having regard to the way in which he has altered his position. There
are exceptions to this rule, for instance (an example given by Jenkins LJ)
where—'the court, on being appraised that the premises were being
consistently used for immoral purposes, would decline to give the tenant any
relief or assistance which would in any way further his use or allow the
continuance of his use of the house for those immoral purposes. (Central Estates
v Woolar [1971] 3 All ER 647).
▪
However, as Gill v Lewis shows, the circumstances must be very exceptional. In
that case the Court of Appeal treated the facts that 'the tenants having been bad
payers in the past, and the fact that they have been elusive when attempts have
been made to serve them' as irrelevant matters for consideration. One of them
had been convicted for indecent assault on the demised premises.”
Effect
•
Where relief from forfeiture is granted to a lessee under the relevant legislation, the
relief reinstates the lease as though there had never been a forfeiture.
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o Scala House and District v Forbes [1973] 3 All ER 308
▪
“This brings me to the final question, whether the first defendant should be
granted relief from forfeiture. When we reserved judgment, we indicated that
in any event if we came to that point, we would grant relief. The judge would
have been prepared to do so, and though in the circumstances it was not a
decision to exercise his discretion nevertheless his view must weigh with us. He
accepted that the first defendant never intended to sublet, or part with
possession, instructed his solicitor only to prepare a managership agreement
whereby the second defendant and third defendant would manage his business
on terms of being remunerated by the profits over and above the sums of £25 to
£35 weekly, and that it was the error of the solicitor that produced a document
which was an unlawful subletting. Further, the subletting could have done no
damage to the lessor, and was one from which the lessor could not reasonably
have withheld his consent had it been asked for. Further, the first defendant
had sought to reimburse himself by the agreement the substantial sum which
he had paid for the goodwill of the cafe business on acquiring the lease, and
perhaps the value of improvement to the goodwill during his own months of
management before the agreement with the second and third defendants.
Further, forfeiture of the lease would divert to the new lessor what the second
and third defendants would be prepared to pay over and above the present rent,
truly pennies from heaven. And further the sub term of the second and third
defendants has been surrendered and the parting with possession ended. In all
the circumstances of the case in my judgment this is a proper case for granting
relief on terms as to expenses and costs, as to which I would wish for short
further submissions.
▪
I do not take into consideration in this connection the fact that the lessor, on
being asked before the writ whether he would consent to an assignment by the
first, second and third defendants, ignored the suggestion, even if that were
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taken to be a refusal. My primary reason is that the lessor could not be expected
to give such consent; it would have operated as a waiver of the subletting breach
of which the lessor was complaining and I do not consider that the first
defendant was entitled thus to seek to escape from the consequences of his
breach.”
o Official Custodian v Mackey, Supra @ p.694 c-d.
▪
There are, therefore, two points on which the plaintiffs' right to the relief they
seek in this action depend. First, there is the possibility that the House of Lords
may reverse the Court of Appeal and restore the lease with retrospective effect.
Second, there is the question whether an order under s 146(4) can detract
retrospectively from the entitlement which the plaintiffs would otherwise have
had before the order was made. I will deal with these two points in turn. The
Court of Appeal, by its order of 18 April 1984, declared the lease to be forfeited
and adjudged Parway liable in damages as a trespasser as from 20 July 1982.
Under that order and for as long as it stands the lease has gone. It must follow
that the interests derived from the lease, the mortgages and subleases, have
gone with it. It must also, in my view, follow that the receivers have had since
19 July 1982 no title or right against the plaintiffs to collect the rents from the
erstwhile subtenants or to manage the property. The receivers' right to do so 45
45 was derived from the lease, the mortgage thereof to the third defendant and
their appointment as receivers by the third defendant. Once the lease was
determined by forfeiture, the edifice on which the receivers' entitlement and
status was based disappeared.
▪
A sublessee may apply for relief against the forfeiture of the headlease for breach
of any covenant, whether or not the tenant under the headlease can claim relief.
If the court decides to grant relief, it may make an order vesting the whole or
any part of the demised premises in the sublessee for the whole term of the lease
or any less term on such terms and conditions as it thinks fit, but the sublessee
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is not entitled to require a lease to be granted to him for any longer term than
he had under his original sublease.
WAIVER OF RIGHT TO FORFEITURE
•
The right to forfeiture is waived where the landlord, after acquiring the right to forfeit,
does any act which can be construed as continuing to recognise the relationship of
landlord and tenant between himself and the lessee. The landlord must have the
requisite knowledge of the cause of the forfeiture i.e., the basic facts of the forfeiture
and has recognised the tenancy after acquiring such knowledge. In these circumstances
he will be precluded from denying waiver of the forfeiture. It must be a positive act. If
the landlord stands by and does nothing, this does not constitute a waiver. The onus of
proof of landlord’s knowledge is on the tenant.
•
An omission to act does not constitute waiver. Examples of unequivocal acts amounting
to waiver include:
o demand for, suit for or acceptance of rent falling due after the breach;
▪
Segal Securities Ltd v Thoseby [1963] 1 All ER 500
•
In 1951 the defendant acquired the sub-lease of a maisonette at Eaton Place,
London, for the residue of a term of twenty-one years expiring on 31 January
1969. The sub-lease contained a tenant's covenant “to use the demised
premises for the purpose of a private residence in the occupation of one
household only”. The maisonette was bigger than the defendant required for
herself alone, and she found ladies as paying guests to live in the maisonette
or share the accommodation with her, some were friends of hers and some
were friends of friends. In July, 1960, the plaintiffs acquired the leasehold
reversion of the sub-lease. In the summer or autumn of 1960, a Miss
Whitehouse, who was a friend of a friend of the defendant, was taken into
the maisonette on a sharing basis. For some months prior to June, 1962, and
until after 7 August 1962, a Miss Walker also was living in the maisonette.
She came in answer to an advertisement, was a paying guest and lived in an
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independent way rather than as sharing accommodation; the defendant
regarded the transaction with her as a letting. On 8 June 1962, the plaintiffs
gave notice to the defendant under s 146 of the Law of Property Act, 1925,
requiring her to remedy alleged breach of covenant (to use the maisonette
only a private residence) within twenty-eight days (expiring on 6 July 1962).
By letter of their solicitors on 25 June 1962, headed “Without prejudice” the
plaintiffs demanded the quarter's rent, which was payable in advance, due
on 24 June 1962; the demand was expressed to be without prejudice to any
breach of covenant. The rent was tendered but not accepted. On 7 August
1962, the plaintiffs issued the writ in this action claiming possession,
damages, rent and mesne profits.
•
Held – (i) the defendant was in breach of the covenant to use the demised
premises only as a private residence during the period while Miss Walker
was in residence there, for she was a paying guest and there was the basis of
a letting to her, though the defendant would not have been in breach, in the
circumstances, by reason only of Miss Whitehouse's residence, as she was
there (in June, 1962) on a basis of a sharing arrangement as a friend (see p
504, letter c, and p 503, letter i, post); and the defendant's breach was a
continuing breach (see p 507, letter c, post) subsisting for many months
immediately preceding the commencement of the action.
•
(ii) the demand for rent, by letter dated 25 June 1962, although written
“without prejudice”, operated as a waiver of any right of forfeiture for the
defendant's breach of the covenant up to the time when the notice of 8 June
1962, was issued, but did not operate as a waiver of the later breach
continuing between 6 July when the time set by the notice expired, and 7
August 1962, when the writ was issued, for the plaintiffs had not been shown
to have had knowledge on 25 June that the breach would be continuing after
the expiration of the notice on 6 July.
•
(iii) in the circumstances relief against forfeiture would be granted.
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▪
Bates v Sylvester (1960) 3 WIR 136
•
GOMES CJ: “In reply to the contention that the manner of subletting
constituted a breach of agreement or an act of waste, counsel for the
respondent submitted that if there has been any breach of agreement it was
a continuing breach and has been waived by the landlord's receipt of rent
after and with full knowledge of the breaches. In support of his submission
counsel cited the cases of Oak Property Co, Ltd v Chapman and Hyde v
Pimley.
•
In the former case, in considering a question of waiver, the court held that
the qualified acceptance of rent from a statutory tenant is not necessarily
fatal to a landlord's right to seek an order for possession. In the course of its
judgment the court stated ([1947] 2 All ER at pp 5-6): 'By the common law,
which tended to construe forfeiture provisions as effective to render leases
voidable and not void, a landlord was bound, as soon as he was fully aware
of a non-continuing breach of covenant by the tenant entitling the landlord
to avoid the lease, to elect at once for or against avoidance and to notify the
tenant if he elected for the former. On this principle, acceptance of any rent
accrued due after the landlord's knowledge of the tenant's breach was
regarded necessarily as inconsistent with an election to avoid the lease and
consistent only with its affirmance. The acceptance of the rent being, in the
circumstances, an unequivocal act, waiver of the breach followed as a matter
of law, according to Parker J, in Matthews v Smallwood. And so unequivocal
was the act of acceptance of rent that the landlord was held disentitled to
get the best of both worlds by attempts to qualify the acceptance by stating
that he accepted the rent without prejudice to his rights of forfeiture.
•
One of the cases referred to in those notes is the case of Goodright v Davids
and the note is as follows: 'In Goodright v Davids the lease contained a
covenant not to underlet without licence, and a power of re-entry in case of
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breach of the covenants; the lessee underlet various parts of the premises,
but the lessor knew of it and received rent afterwards. 'This case,' said Lord
Mansfield, 'is extremely clear. To construe this acceptance of rent, due since
the condition broken, a waiver of the forfeiture, is to construe it according
to the intention of the parties. Upon the breach of the condition the landlord
had a right to enter. He had full notice of the breach, and does not take
advantage of it, but accepts rent subsequently accrued. That shows he meant
the lease should continue. Cases of forfeiture are not favoured in law; and
when the forfeiture is once waived, the court will not assist it.' And in the
case of Hyde v Pimley the court held that, although the conception of
consent to an act was not the same thing as waiver of its consequences, the
conduct of the landlord in accepting four and one-half months' rent with
clear knowledge of the subletting amounted not only to a waiver of the
covenant against subletting but also to a consent to subletting within the
meaning of the relevant statutory provision, which is substantially the same
as the provision in s 14 (1) (m) of the Rent Restriction Ordinance, Cap 27, No
18 [T]. In the case on appeal there was no evidence whatever of any qualified
acceptance of the rent after the landlord had knowledge of the breaches.
The only thing in the nature of a qualification was the statement by the
landlord that he refrained from taking action on both the notice to quit that
was given in the year 1955 and the one that was given two years later. The
reason given by the landlord for refraining to act in pursuance of those
notices was because of undertakings given by the tenant and because he
hated to come to court over the matter. In our view those were not reasons
that would operate against the consequences of waiver and it seems clear
that this failure to take proceedings on the second occasion even though the
tenant had failed in his undertaking that was given after the first notice to
quit, shows, at least, that the landlord was not averse to the continuation of
the tenancy notwithstanding the breaches and the failure of the tenant to
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carry out the undertakings given by him. In such circumstances we consider
that the landlord has by implication acted in such a manner as to bar himself
from alleging that he has not consented.”
▪
Central Estates (Betgravia) Ltd v Woolgar (1972) 1QB48
▪
Expert Clothing Service & Sales Ltd v Hillgate High House Ltd (1986) Ch
340
o Distress for rent whether due before or after the breach.
▪
Where however the breach is a continuing breach, waiver only applies to those
breaches which have taken place prior to the waiver.
▪
Once the landlord has taken unequivocal action, treating the lease as forfeited
e.g., by commencing an ejectment action, subsequent demand for or acceptance
or rent does not amount to waiver of the right to forfeit.
▪
Ramjattansingh v Khan (1977) High Court, T&T, No. 3210 of 1976
(Unreported)
•
R let a building to K for a five-year term from 1 December 1975, at a monthly
rent of $400. K covenanted in the lease ‘not to use or permit the demised
premises or any part thereof to be used otherwise than for business
purposes, such business to include only grocery, bar, poultry depot, and for
residential purposes. K later erected an extension to the building in the form
of a shed, which he used as a pool room. This constituted a breach of the
covenant. R knew of the breach in august 1976 and, in December 1976, he
issued and served a writ claiming possession. There was evidence that, in
December 1977, K paid and R accepted one month’s rent. K argued that the
acceptance of rent with knowledge of the breach operated as a waiver of R’s
right to forfeiture. Cross J held that the issue and service of the writ of
possession demonstrated clearly and unequivocally R’s decision to treat the
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lease as forfeited, and the subsequent acceptance of rent did not affect it.
The question is, does the acceptance of rent after knowledge of breaches of
the covenants constitute an unequivocal affirmation of the tenancy and
therefore operate as a waiver, as te defendants maintain by the defence?
Halsbury’s Laws of England: Probably also an absolute and unqualified
demand of rent due after the cause of forfeiture, made by the landlord or his
duly authorized agent, operates as a waiver. But if the landlord has already
shown a final determination to take advantage of the forfeiture, for instance
by commencing an action to recover possession, no subsequent act, whether
receipt of rent, or distress, or otherwise will operate as a waiver. If further
authority for this view were needed, it is found in the judgment of Lord
Coleridge in Evans v Enever: But there is a series of cases which establish
that if an action is brought for recovery of possession for breaches of
covenants in the lease, that is an irrevocable election to determine the lease,
and that no subsequent acts of the plaintiff can be relied on as qualifying
that position. In his closing address, counsel for the defendants urged that
even if the plaintiffs were entitled to re-enter, this was a proper case for the
court to grant relief against forfeiture. This relief has not been sought in the
pleadings nor is there any evidence to warrant an exercise of the court’s
power. For the reasons stated, there will be judgment for the plaintiffs for
possession.
▪
The effect of waiver is that the landlord can no longer rely on the breach as a
reason for forfeiting the lease.
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SUMMARY EJECTMENT PROCEEDINGS
•
There are summary proceedings which statute enables the landlord to bring an action
whose object is the ejection the tenant and restoration of possession to the landlord.
Such proceedings are generally available where the landlord has served a valid notice
to quit which has expired or where the term (fixed) has expired or where the tenancy
has otherwise been determined.
•
Section 3-7 Summary Ejectment Ordinance.
•
Jurisdiction is given to a magistrate by notice/summons to require the tenant to attend
before them and show good reason why an order for possession should not be issued
against them. Where the tenant can show no/or no good reason why an order for
possession should not be made in the landlord’s favour, the magistrate has the power
to give directions that possession may be retaken with force, if necessary.
•
An ejectment is the most usual method of forfeiting a lease in modern times; since
according to Duplessis v Moore, if force is used in re-entry, the landlord may be
criminally liable for forcible entry. Where ejectment proceedings are commenced, the
forfeiture does not become final until the court grants the possession order. Before then,
the tenant has a right to seek relief against forfeiture, which if granted, will re-establish
the lease.
297