Covenants Flashcards
Implied Landlord covenants
(a) Quiet enjoyment, (b) obligation not to derogate from the grant, (c) fitness for purpose,
(a) Quiet enjoyment
Tenant will have possession of the premises free from disturbance by the landlord or anyone lawfully claiming though him.
-Baxter v Camden (1999): Is not a commitment to keep the premises free from noise enjoyment.
-Owen v Gadd (1956): Landlord erected scaffolding outside a shop. Breach of covenant to allow quiet enjoyment.
-McMillan v Singh (1985): Mere invasion of privacy is insufficient to constitute a breach, but unlawful eviction will be a breach.
(b) Obligation not to derogate from the grant.
Landlord promises not to do anything to make the demised premises unfit for the purpose for which they were let.
- Stewart v Scottish (2005)
(c) Fitness for purpose
There is no implied covenant that the premises should be fit for purpose and, as a general rule the landlord is also under no implied obligation to repair. However, in relation to a dwelling house (family house). s.11 Landlord and Tenant Act 1985 obliges the landlord: (a) repair structure and exterior, (b) keep in repair and proper working public services, (c) keep in repair and proper working installations such as heating.
Landlord is liable just if notified.
Implied Tenant Covenant:
(a) pay the rent, (b) pay rates and taxes, (c) allow landlord to enter and view the state of repair, (d) Not “commit waste” no damages.
Alienation covenants
Tenant is free to alienate his interest unless express restriction. i.e assigning the lease, creating a sub-lease or entering into a mortgage.
Absolute covenants: No permission. Any attempt to assign or sublet would constitute a breach.
Qualified covenant: Allowance subject to Landlord permission.
Fully qualified covenant: Allowance subject to landlord’s consent but that consent should not be unreasonably withheld.
Reasonableness in a fully qualified covenant (case)
International Drilling Fluids Ltd v Louisville Investment Ltd [1986]
Remedies for non-payment of rent
(1) -sue for the debt, (2) Commercial Rent Arrears Recovery - (commercial premises only), (3) forfeiture: NO AUTOMATIC (right of the landlord to retake physical possession of the premises in order to bring the lease to an end)
Remedies for breaches of other types of covenants (i.e. other than the covenant to pay rent)
(1) Contractual remedies; (2) Forfeiture for breach of covenant other than for non-payment of rent
(1) contractual remedies:
(1) Specific performance; (2) Injunction; (3) Damages:
Expert Clothing Service v Hillgate House (1985)
Test to determine whether a breach of covenants is remediable or not: Court of Appeal held that the test should be whether compliance with the covenant, although late, together with compensation (when appropriate) could effectively remedy the harm that had been done by the breach.
Rugby School v Tannahill (1935)
A breach of covenant is irremediable when that breach is not capable of remedy as the mere cesser of the immoral user would not remove the stigma attached to the property.
Scala House v Forbes (1974)
Breaches of covenants consisting in not assigning or sublet without the landlord’s consent were not capable of remedy
International Drilling Fluids v Louisville Investment (1986)
6 stages test to determine when it will be reasonable for a landlord to withhold consent.
Ashworth Frazer v Gloucester City Council (No. 2) (2001)
House of Lord affirmed the general principle derived from International Dilling Fluid case. It held that withholding consent might be reasonable where the landlord apprehends that the proposed assignee intends to use the premises for a purpose objectionable to the landlord’s estate. reasonableness of the withhold is a question of fact.
