Leasehold cov Flashcards
what are covenants in lease?
promises made between landlord and tenant and the way the leasehold estate is enjoyed, they will enter a variety of cov to benefit eachother
Types of cov?
(i) Express Covenants (read the lease/tenancy agreement)- basically tenancy agreeemnt look at this
(ii) Implied Covenants- comon law
(iii) Statutorily Implied Covenants-implied by parl
implied cov- 1st example
(a) Covenant for Quiet Enjoyment
Every landlord promises his tenant/lessee that he may remain in the land demised free from undue disturbance or physical interruption:
See: Kenny v Preen (1963) 1 QB (persistent/prolonged intimidation by landlord held to amount to a breach).
restrain by injuc or claim
more examples of implied cov of quiet enjoyment?
Lavender v Betts (1942) 2 All.E.R (where landlord removed doors and windows of tenant’s house, with a view to forcing tenant out, held to amount to a breach).
Owen v Gadd (1956) 2 QB ( landlord erected scaffolding outside tenants shop, held to be a breach).
Southwark LBC v Mills HL [1999] 4 All.E.R 449 (landlord not in breach of covenant for not supplying tenant’s flat with sound proofing).
2nd implied cov?
(b) Landlord’s covenant not to derogate from Grant
Landlord must not derogate from his grant, i.e must not frustrate the tenant’s use of the land for the purposes for which it was let to him.
Aldin v Latimer Clark Muirhead (1894) 2 Ch.
(Landlord gave tenant who was a timber merchant a lease of drying sheds. Landlord then let neighbouring land which impeded the flow of air to tenant drying sheds – held to be a breach).
see also with (b) Landlord’s covenant not to derogate from Grant?
See also:
Newman v Real Estate Debenture Corp & Flower (1940) 1 All.E.R
Oceanic Village v Shirayama Shokusan Co Ltd [2001] 1 L & T 35 Ch D
3rd cov?
(c) Fitness for human Habitation
Generally there is no implied condition into leases and tenancies to the effect that the premises let are fit for human habitation.
exception for no.3?
Exception: Smith v Marrable (1843) 11 M & W. Where a furnished dwellinghouse (house or flat) let for residential purposes there is an implied condition that the premises as of day one of the tenancy are fit for human habitation. If not so fit on that first day, the tenant can repudiate the tenancy and claim damages.
See also Wilson v Finch-Hatton (1876-77 L.R 2 Ex.D 336 and S.8 Landlord and Tenant Act 1985 (virtually redundant)).
what is the tenants implied cov?
Tenant’s Implied Covenants
(a) To pay the rent/reasonable rent
This will be implied if no express covenant to pay a set rent exists (unlikely!).
(b) To pay the rates, taxes etc in relation to the property let - except those for which the landlord is liable.
(c) Not to commit acts of waste (alteration/damage to the premises).
what is meant not to commit acts of waste?
4 Types of waste:
(i) Voluntary Waste – any act by the tenant causing damage to the land, e.g cutting down trees/demolishing buildings etc
(ii) Ameliorating Waste – alterations which improve the land carried out without the landlord’s consent
(iii) Permissive Waste – failing to maintain the premises, not removing leaves from a drain allowing a flood to occur.
(iv) Equitable waste – acts of downright destruction – ripping lead of the roof, ripping out doors etc.
what is the landlords remedy for waste?
Landlord’s remedy - damages or injunction.
tenant implied cov?
(d) ‘Tenant-like-User’
‘A tenant is under a duty to use the property let to him in a tenant like or husband like manner’, per Denning L.J Warren v Keen [1954] 1 QB.
‘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 and windows. He must unstop the sink when blocked…and do the little jobs about the place a reasonable tenant would do…
…In addition he must of course not damage the house wilfully 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…’
Covenants implied by Statute?
S.11 Landlord and Tenant Act 1985 (as amended):
Where on or after 24.10.61 a dwellinghouse is LET for a term of seven years or less, there are implied covenants by the landlord
stat implied cov by landlord?
(a) to keep in repair the structure and exterior of the dwellinghouse, (including drains, gutters and external pipes); and
(b) to keep in repair and proper working order the installations in the dwellinghouse for the supply of water, gas and electricity and for sanitation (including drains, sinks baths and sanitary conveniences) and
(c) to keep in repair and proper working order the installations in the dwellinghouse for space heating and heating water.
cases for stat?
Quick v Taff-Ely BC (1986) QB (dealt with equivalent forerunner provision to S. 11 in old Housing Act 1957 – severe condensation and damp in flat due to poor design fault – steel framed windows in 1960’s block of flats did not put landlord in breach of the covenant to repair).
Staves v. Leeds City Council [1992] 29 EG 119 (damp plasterwork due to consideration had to be hacked off, as there was therefore ‘structural’ damage, landlord breached S.11.
more cases for stat?
Wainwright v Leeds City Council [1984] 270 EG 1289 (CA)( no damp proof course in council house , held no breach of S.11, works to put one in would go beyond mere ‘repair’ but be betterment).
O’Connor v Old Etonian Housing Association Ltd [2002] 2 All.E.R 1015 (heating system in defective working order because of design defect, (gas pipes too narrow), landlord held liable to correct system under S.11)
Niazi Services v Van Der Loo [2004] 1 WLR 1254.
extra cases for stat?
Wallace v Manchester City Council (1998) 30 HLR 1111
English Churches Housing Group v Shine [2004] HLR 42
2nd type of leasehold cov?
1st was cov to repair
2nd covenants not to assign or sub let
what is an assignment of a lease?
An assignment of the lease takes place where T1 (assignor) (often, pursuant to a contract and for money) assigns the residue of the lease to a new tenant (assignee) T2. T 2 then takes up possession and takes over the rights and liabilities under the lease.
when does subletting occur?
Sub-letting occurs where, a tenant, say T1 lets all or part of his property out to another person for a period less than the residue of the lease. Thus T1 who has 9 years and 6 months left on his lease, lets the whole property out to a sub-tenant (ST), for 9 years, 5 and a half months. ST will pay his rent to his landlord i.e T1. In turn T1 continues to pay his rent to his landlord, LL under the head lease.
what is a tenants express cov to not assign?
A tenant’s express covenants against assignment, sub-letting etc may be an absolute covenant ( i.e blanket ban on such dispositions), or qualified, (i.e such dispositions are permitted if the landlord gives his prior written consent).
-ABSOLUTE- these prohib any assignment or subletting of the prop, subject only to the landlord, changing his mind upon request
what are stat cov to not assign?
Qualified covenants are more common in commercial leases and these are governed by S.19(1) Landlord and Tenant Act 1927, which states that any landlord’s consent shall not be unreasonably withheld. If unreasonably withheld the landlord can seek a declaration to this effect from the Court S.148 County Courts Act 1984.
allow assignment or sublett but onyl with landlords consent, if qual cov without landlords consent = wil not prohibit sub let that part of prop -wilson v rosenthal
what does the landlord and tenant act impose?
The Landlord and Tenant Act 1988 imposes certain statutory duties on a landlord in relation to applications for licences to assign, sub-let (underlet) etc in relation to leases.
what does s 1 (3) do?
Basically S.1(3) places a duty on landlords within a reasonable time to give consent except where it is reasonable not so to do, or if consent is given with conditions, the conditions or if withheld the reasons for withholding consent. Failure to comply with these statutory conditions is a tort of breach of statutory duty for which damages can be claimed for any loss arising.
cases to look at?
See Venetian Glass Gallery Ltd v Next Properties Ltd [1989] 2 EGLR 42
Design Progression Ltd v Turloe Properties Ltd [2004] EWHC 324
Go West Ltd v Spigarolo [2003] 2 All.E.R 141.
Ashworth Frazer Ltd v Gloucester City Council [2001] 1 WLR 2180 HL.
what is Enforceability of Leasehold Covenants based on?
upon their contractual rels to one another - parties have privity of contract
liability extends to all cov in lease, regardless of whether they touch and concern land or not continues for the entire duration of lease term
A. Lease Granted Before 1st January 1996?
Original Parties to lease LL1 and T1 liable on all covenants in the lease.
If T1 assigns to T2 those covenants which ‘touch and concern the land’ , can be enforced by T2 against LL1. (Spencer’s Case (1583).
Conversely, the LL1 can enforce those covenants which ‘have reference to the subject matter of the lease’ against T2, S.79LPA.
what is ll1 assigns estate to ll2?
If LL1 assigns his estate (e.g freehold) to LL2, it is LL2 who picks up exclusively the right to enforce against T1 all the tenant’s covenants, S141 LPA, current and past breaches, see Re King [1963] Ch and Arlesford Trading v Servansingh [1971] 1 WLR (CA).
what does ll2 pick up on?
If LL1 assigns his freehold title to LL2 it is LL2 who picks up the burden of the landlord’s covenants. LL2 then can be sued by the relevant tenant e.g T1, S.142 LPA, see, City v Metropolitan Properties v Greycroft (1987) 1 WLR.
