W3 Leasehold Flashcards
What are the advantages of a leasehold over a licence?
Leasehold is a proprietary right
Leasehold will normally bind a new purchaser of land
Leaseholds have a greater degree of security of tenure
Leases require due process to terminate
What is a proprietary right?
A right related to the property itself, rather than a right related to a relationship or contract (i.e. a personal right).
What is security of tenure?
Term used to describe the statutory protections afforded to tenants when a lease ends allowing them to remain in possession until removed by court order
What is a lease (two levels of operation)?
A proprietary right/estate in land - s1.1.b LPA 1925
A contractual relationship between landlord and tenant
Is a licence a proprietary right?
Not usually.
In some cases a licence holder has been given the right to evict or a right to challenge termination
Bruton v London and Quadrant 1999
Facts: Local authority granted a housing trust a licence to use council property as short term accommodation for homeless people, on the condition that the council could have access at specific times for development work. Tenant (who was granted a licence by the housing trust) did not vacate as requested, an action was brought, and question was raised whether it was a lease or a licence. Court determined that the intention of the agreement of both parties was to grant exclusive possession to the tenant, which is essential to a lease under Street v Mountford, so was a lease. The clause requiring the tenant to vacate upon notice were unenforceable, as you can’t contract out of the statutory implied covenants of the LTA 1985. However, the judgment confirmed that while it was a lease/tenancy, it did not necessarily grant proprietary rights.
Significance: HoL accepts the existence of a non-proprietary lease. Example of a technically ultra vires lease. Example of a licence found to actually have been a lease.
Manchester Airport Plc v Dutton 2000
Facts: National Trust owned land near the site for the airport’s second runway and granted a licence for the airport staff to undertake the work. Environmental protestors entered to try and prevent the work. Question was whether a licensee no in de facto occupation or possession was able to rely on a court order for possession. Historically, ejectment could only be performed by someone with a proprietary estate in land. Court held that they could grant a licensee relief which would protect their legal rights in the licence.
Significance: Licence holder given same rights to evict as leaseholder
Manchester Ship Canal Comp v Vauxhall Ltd 2019
Facts: D had a long licence to use drainage pipes and maintain them in the ship canal. Didn’t pay a licence fee, so C tried to terminate. Court granted D right to relief from forfeiture, even though it was a licence. Said the licence granted possessory, if not proprietary, rights, so relief from forfeiture could be granted.
Significance: Licence holder entitled to apply leasehold rules to challenge termination. Example of court taking a pragmatic approach to commercial situations.
What is a service occupancy?
When an employee is required to live in a premises for their job.
Is a service occupancy a lease or a licence?
Has the features of a lease but is not proprietary
Norris v Checksfield 1991
Facts: Employee lives in property to better perform their duties, so if employment terminated, occupancy can be terminated as well. Man given occupancy of a bungalow near a garage to be on call, lost driver’s licence, lost job and occupancy terminated. Tried to argue he still had a lease of bungalow, but court deemed it a licence (contract clearly tied the occupancy to the employment, and rent was deducted from wages), so no protections against eviction applied in this circumstance.
Significance: Example of a service occupancy invalidating the proprietary nature of a lease
What is the statutory definition of a lease?
Term of years absolute
Auth: s1(1)(b) LPA 1925
What is the statutory definition of a “term of years absolute”?
A term of years (including one year or a fraction of a year)
Either in possession or in reversion
Whether or not at rent
Subject or not to another legal estate
Auth: s205(1)(xxvii) LPA 1925
s205(1)(xxvii) LPA 1925
Defines a term of years absolute
What does “in possession” mean?
Tenant physically possesses land
What does “in reversion” mean?
Land is occupied by another, e.g. subtenant
What is the common law definition of a lease?
1) Exclusive possession
2) Certainty of term
3) Rent
Auth: Street v Mountford
Street v Mountford
Facts: Claimant granted defendant the right to occupy two rooms, subject to rent, with 14 days termination notice under an agreement titled “licence”. Agreement included a clause saying that no tenancy was created. Court held that despite the name of the document, it was a tenancy/lease since it granted exclusive possession for a clear term (no attendance or services).
Significance: Provides common law definition for lease: exclusive possession, certainty of term, rent.
What is exclusive possession?
The tenant has the right to exclude others from the property, including the landlord (generally)
What is certainty of term?
The length of the lease must be determinable from the outset
Is rent essential for an agreement to be a lease?
No.
Auth: Ashburn Anstalt v Arnold
Ashburn Anstalt v Arnold 1989
Facts: A man leased a shop premises and subleased it to a business on a long lease (50+ years). He sold both the headlease and sublease on, including provisions that he could remain at the property as a licensee for a period of time without paying rent, and that if the new owner redeveloped the land, he be offered shop premises at a discounted rent. Court held that it constituted a tenancy/lease, even though no rent was required.
Significance: Can still be a lease without a rent.
Does a landlord entering a property/having a key for emergencies violate exclusive possession?
No, landlord entering for reasonable purposes does not disprove exclusive possession
Does a landlord providing services undermine exclusive possession?
Yes, if it’s regular cleaning or similar, can point to more lodger-like arrangements
True or false: if a lease includes a provision for the landlord to provide regular cleaning services, exclusive possession is automatically undermined.
False. It could be a sham clause. It matters if the services are actually being provided in fact.
Aslan v Murphy 1989
Facts: Three separate appeals decided in the same judgment, all concerning whether contracts for occupation were leases or licenses. One required the tenant to vacate from 10:30-12 every day, one had been granted a full possession by the court, and one had a clause saying the owner may take possession at any time at short notice. The clauses in the first and third case were not enforced/intended to be enforced, so were leases.
Significance: Lease vs licence determination is based on the operation of the agreement in fact regardless of what’s in the contract/how it is labelled. An occupier agreeing to a document with a sham clause does not lose their statutory protections.
Antoniades v Villiers 1990
Facts: 1 bedroom flat let to a couple. Included a provision stating the landlord and unspecified other people could share the flat with the tenants. Deemed a sham clause. Although the couple signed separate documents, they had unity of title since the documents were interdependent and identical. Unity of interest was present in that, while the rent was split, they were jointly and severally liable for the full rent. Additionally, landlord had asked if they wanted single or double beds, and they had asked for a double bed - clearly intending to share the flat as a couple.
Significance: Sham clause example. Cohabiting couple had joint tenancy.
Can two separate leases cover the same space?
No - neither could claim exclusive possession
How do joint tenants demonstrate a single, joint lease?
By proving the 4 unities
What are the 4 unities?
PITT:
Possession (equal right to possess the property)
Interest (same nature, extent and duration of interest)
Title (interest derives from same or interdependent documents)
Time (lease vests at the same time)
Can a transient group of people have a joint tenancy?
No
AG Securities v Vaughan 1990
Facts 4 rooms in a shared flat. Each person had an individual arrangement with owner, started occupations at different times and all paid different rents. If somebody left, landlord could introduce somebody else. Court held that there was no joint tenancy – interests started at different times, separate documents, and all of them had different obligations to pay different amounts of rent.
Significance: No joint tenancy in a transient group
Mikeover v Brady 1989
Facts: Couple who moved in at same time then separated. Court held that they were severally liable for their own rent, so no unity of interest. When one left, remaining one offered to pay the full rent and the landlord refused. Since there was no unity of possession, and D could not prove sham clauses, was deemed a licence.
Significance: Couple who had separated did not have joint tenancy on the facts
Lace v Chantler 1944
Facts: Tried to grant lease for the duration of WWII. Uncertain term.
Significance: Certainty of term - term can’t be based on an uncertain end point
Does auto-renewal violate certainty of term?
No. Each renewal is a term, determinable from the outset
Does a break clause violate certainty of term?
No
What are the exceptions to certainty of term?
Court may imply lease length, such as a periodic lease equivalent to the rent payment terms, or a 90-year lease implied into a lease for life
Prudential v London Residuary Body 1992
Facts: Lease for land next to a highway, with a duration “until required to widen the road”. Land was sold to another, who tried to terminate the lease. Leaseholder said could only be terminated for road-building. Court held that the uncertain term voided the lease, but since the rent was paid yearly, the lease would be a yearly lease, and new owner could terminate on that schedule.
Significance: A certain term can be implied through the rent calculation period
Ladies Hosiery v Parker 1930
Facts: Land behind four houses with a shed on it had been leased to a business, with weekly rent. The lease was assigned and freehold bought several times, leading to confusion about the dates. Found to be a weekly tenancy.
Significance: Authority for calculation
Javad v Aqil 1991
Facts: Occupation was granted while the terms of the lease were still being negotiated. Rent was being paid quarterly during this time. Negotiations broke down, tried to claim tenancy protections. Court ruled it was a tenancy at will, not a quarterly tenancy.
Significance: Payment of periodic rent only creates the presumption of a periodic tenancy. It can be rebutted on the facts.
Berrisford v Mexfield 2011
Facts: Sold house to raise money to housing cooperative who rented it back to her. Limited power for landlord to terminate as long as tenant paying rent. Landlord tried to terminate claiming a monthly periodic tenancy. Court created a tenancy for life under s149(6) which is converted to a lease of 90 years.
Significance: Example of certainty of term not being strictly required, but is a controversial decision.
Southward Housing Cooperative v Walker 2015
Facts: Lease with uncertain term. Tenants tried to argue Mexfield, saying that it created a 90-year tenancy. However, the intentions of the parties had not been to grant a lease for life (unlike Mexfield). Agreement was re-classified as a periodic licence.
Significance: Limits Berrisford v Mexfield by saying the intention to create a lease for life must be present for Mexfield to apply.
What are the formality requirements for a lease of 3 years or less?
No written requirement
Immediate possession
At best rent
No premium
Auth: s54(2) LPA 1925
If the above three requirements are not met, then a Deed is required
s54(2) LPA 1925
Leases of three years or less can be created through oral agreements
What is a premium?
An up-front capital payment for a lease that isn’t a deposit
Does a lease of exactly three years require a written agreement?
No
What are the formality requirements for a lease over 3 years but not more than 7 years?
A Deed is required
What are the formality requirements for a lease over 7 years?
Deed (s52 LPA 1925)
Substantive registration (s27(1) LRA 2002)
s27(1) LRA 2002
Disposition of a registered estate or registered charge does not operate at law until any applicable registration requirements are met.
If court has a choice between implying periodic tenancy or finding an equitable lease, which prevails?
Equity
Structure for determining lease v licence
Explain the difference
Explain test for a lease and apply to facts
If multiple tenants, consider 4 unities
Exceptions
Formalities
Conclusion
What is the difference between assignment and subtenancy?
Assignment: Selling remaining time on lease to another person. Tenant changes.
Subtenancy: Leaseholder grants a sub-lease, becoming a sub-landlord. Chain is lengthened rather than parties changing.
What are the required formalities for assignment of a legal lease?
Deed (s52 LPA 1925)
If 7+ years: Substantive registration (s27(1) LRA 2002) (or s4 LRA 2002 if lease unregistered with 7+ years to run)
s4 LRA 2002
Lists events during which title must be registered
If you are the leaseholder of an informal short lease (less than 3 years) and you assign it, do you need a Deed?
Yes
Auth: Crago v Julian
Crago v Julian 1992
Facts: Married couple lived in a flat let on a weekly tenancy. Couple divorced, verbally agreed to transfer tenancy to wife. Landlord then served notice to quit on wife, which was valid because tenancy had not been transferred by Deed.
Significance: Assignment of a weekly tenancy must be by Deed.
What are the required formalities for assignment of an equitable lease?
In writing, signed by the assignor
Auth: s53(1)(c) LPA 1925
What are the required formalities for creation of a sublease?
Same as creation of a lease
Most flats are held on a _____ ______
Long lease, and each sale is an assignment to a new tenant
Why are long leaseholders vulnerable to abuses?
The long lease is a wasting asset, while ground rents or extension fees may go up as the value of the lease goes down
Leasehold Reform (Ground Rent) Act 2022
Designed to make it easier for leaseholders to buy their homes and prevent abuse of long leaseholders
What is the authority for security of tenure for leases created prior to 15 Jan 1989?
The Rent Act 1977
What is the authority for security of tenure for residential leases created after 15 Jan 1989?
Housing Act 1988
What is the authority for security of tenure for business leases created after 15 Jan 1989?
Landlord and Tenant Act 1954
Can the Landlord and Tenant Act (LTA) be excluded in the terms of a lease?
Yes
What is a covenant?
A promise made by one party to another, which is a binding obligation
What are typical tenant covenants in a lease?
Payment of rent
Maintenance
Prohibitions of noise, illegality
Restrictions on assignment, sublettering, alterations
What are typical landlord covenants in a lease?
Repairs/maintenance
Insurance
Quiet enjoyment
Southwark London Borough Council v Mills
Facts: Quiet enjoyment covenant from landlord. Housing authority had failed to soundproof accommodation (so every day sounds from neighbouring flat came through the walls), but since it related to the state of the building before the tenancy, it was not a breach of covenant. Court did allow that excessive noise could be a breach in different circumstances.
Significance: Tenants take possession of premises in the condition they found them in. Pre-existing lack of sound insulation was not a violation of a quiet enjoyment covenant.
_____________ is only permitted if there is an express clause in the lease saying so
Forfeiture
What is forfeiture?
A landlord’s right to terminate the lease for breach
Can covenants be implied by law?
Yes
Liverpool City Council v Irwin 1977
Facts: Court implied obligation for landlord to maintain common areas (unless clearly placed on the tenants).
Significance: Example of implied covenants
What landlord covenants can be implied by statute?
Fitness for human habitation in residential leases less than 7 years
Maintenance and repair of “structure and exterior” of residential leases of less than 7 years
“Reasonableness” implied into alienation clauses that are subject to landlord’s consent
What tenant covenants can be implied by statute?
Obligation to maintain the property in a “tenant-like manner”
Section 9(A) LTA 1985
Implies a covenant by the lessor that a dwelling it fit for human habitation during the term of a lease
includes exclusions/exemptions
Section 11 LTA 1985
Implies a covenant by the lessor of a short lease to keep in repair the structure and exterior of the dwelling and necessary fixtures
Edwards v Kumarasamy 2016
Facts: A paved area outside of a letted building fell into disrepair, and a subtenant was injured. Question was whether the area was part of the “exterior of the building”, and whether the headtenant could be held liable.
Significance: Paved area was separate from the exterior of the building - to interpret otherwise would be too wide. Headtenant could only be held liable if noticed of the disrepair.
Grand v Gill 2011
Facts: Tenant complaining of excessive damp and mould in the flat she leased. Tenant was appealing against damages, saying the judge had failed to consider that the landlord had neglected to repair the damaged plaster. Court ruled in tenant’s favour, considering that plaster is typically part of buildingworks rather than decorative.
Significnace: Plaster is part of the structure, unless merely decorative.
s11(2) LTA 1985
Lessee must use the premises in a tenant-like manner
Warren v Keen 1954
Facts: Landlord tried to recover from tenant costs of repairing damp damage, as mistakenly believed tenants had an implied covenant to keep the flat “wind and water tight”. Court found the tenant’s only implied covenant was to use and maintain property in a tenant-like manner, and the damage was from fair wear and tear, so landlord could not recover the costs.
Significance: tenant must maintain property in a tenant-like manner (“residual tenant liability”).
What is included in the obligation to “repair”?
A defective component will not necessarily fall under a repairing obligation if no actual damage
Obligation to repair does not include obligation to renew the whole property
Quick v Taff Ely BC
Facts: Inherent defect in the window seals led to condensation, and house was near-uninhabitable in winter. Court gave restrictive definition of repair, so that inherent defect did not fall under the definition of disrepair.
Significance: Only obligation to repair if actual damage to property. Note: since 2018 legislation, now an implied fitness for habitation covenant. This case was in 1985.
Brew Brothers Ltd v Snax Ltd 1970
Facts: A leaky drain caused nuisance to the neighbours, who sued both the landlord and tenant of leaky property. Under the lease, tenants had some responsibility for repair. Court found that tenants were responsible for repairs if pointed out by landlords, landlords are presumed to know the state of the premises and were liable for nuisance if allowed to continue, tenants were jointly liable for nuisance by failing to abate, determining if work = repair depends on looking at work as a whole, and the work required fell outside the scope of the tenant’s covenant.
Significance: Obligation to repair is not an obligation to renew – needed a new foundation. Value of repair vs value of property.
What is an alienation clause?
The right to assign a lease
s19(1) LTA 1927
Imposes reasonableness on landlord when deciding consent for alienation (can’t unreasonably withhold)
International Drillings Fluids v Louisville Investments 1986
Facts: Office building tenant looking to assign the lease. New lettor wanted to use it to provide serviced short term office accommodation. Landlord refused consent saying the value of the reversion would be diminished. It would disproportionately benefit the landlord to refuse the assignment, as the premises would be vacant and landlord would still be collecting rent. Court ruled that his reasons were refusing were not founded in fact, and the disproportionate benefit to landlord/detriment to tenant made it unreasonable.
Significance: Example of unreasonable refusal
s1 Landlord and Tenant Act 1988
Landlord cannot unreasonably delay, cannot deny consent unreasonably, and burden of proof for reasonability is on the consentor
s19(2) LTA 1927
Imposes reasonableness on landlord when deciding consent for improvements (can’t unreasonably withhold)
Facts: Local authority granted a housing trust a licence to use council property as short term accommodation for homeless people, on the condition that the council could have access at specific times for development work. Tenant (who was granted a licence by the housing trust) did not vacate as requested, an action was brought, and question was raised whether it was a lease or a licence. Court determined that the intention of the agreement of both parties was to grant exclusive possession to the tenant, which is essential to a lease under Street v Mountford, so was a lease. The clause requiring the tenant to vacate upon notice were unenforceable, as you can’t contract out of the statutory implied covenants of the LTA 1985. However, the judgment confirmed that while it was a lease/tenancy, it did not necessarily grant proprietary rights.
Significance: HoL accepts the existence of a non-proprietary lease. Example of a technically ultra vires lease. Example of a licence found to actually have been a lease.
Bruton v London and Quadrant 1999
Facts: National Trust owned land near the site for the airport’s second runway and granted a licence for the airport staff to undertake the work. Environmental protestors entered to try and prevent the work. Question was whether a licensee no in de facto occupation or possession was able to rely on a court order for possession. Historically, ejectment could only be performed by someone with a proprietary estate in land. Court held that they could grant a licensee relief which would protect their legal rights in the licence.
Significance: Licence holder given same rights to evict as leaseholder
Manchester Airport Plc v Dutton 2000
Facts: D had a long licence to use drainage pipes and maintain them in the ship canal. Didn’t pay a licence fee, so C tried to terminate. Court granted D right to relief from forfeiture, even though it was a licence. Said the licence granted possessory, if not proprietary, rights, so relief from forfeiture could be granted.
Significance: Licence holder entitled to apply leasehold rules to challenge termination. Example of court taking a pragmatic approach to commercial situations.
Manchester Ship Canal Comp v Vauxhall Ltd 2019
Facts: Employee lives in property to better perform their duties, so if employment terminated, occupancy can be terminated as well. Man given occupancy of a bungalow near a garage to be on call, lost driver’s licence, lost job and occupancy terminated. Tried to argue he still had a lease of bungalow, but court deemed it a licence (contract clearly tied the occupancy to the employment, and rent was deducted from wages), so no protections against eviction applied in this circumstance.
Significance: Example of a service occupancy invalidating the proprietary nature of a lease
Norris v Checksfield 1991
Defines a term of years absolute
s205(1)(xxvii) LPA 1925
Facts: Claimant granted defendant the right to occupy two rooms, subject to rent, with 14 days termination notice under an agreement titled “licence”. Agreement included a clause saying that no tenancy was created. Court held that despite the name of the document, it was a tenancy/lease since it granted exclusive possession for a clear term (no attendance or services).
Significance: Provides common law definition for lease: exclusive possession, certainty of term, rent.
Street v Mountford
Facts: A man leased a shop premises and subleased it to a business on a long lease (50+ years). He sold both the headlease and sublease on, including provisions that he could remain at the property as a licensee for a period of time without paying rent, and that if the new owner redeveloped the land, he be offered shop premises at a discounted rent. Court held that it constituted a tenancy/lease, even though no rent was required.
Significance: Can still be a lease without a rent.
Ashburn Anstalt v Arnold 1989
Facts: Three separate appeals decided in the same judgment, all concerning whether contracts for occupation were leases or licenses. One required the tenant to vacate from 10:30-12 every day, one had been granted a full possession by the court, and one had a clause saying the owner may take possession at any time at short notice. The clauses in the first and third case were not enforced/intended to be enforced, so were leases.
Significance: Lease vs licence determination is based on the operation of the agreement in fact regardless of what’s in the contract/how it is labelled. An occupier agreeing to a document with a sham clause does not lose their statutory protections.
Aslan v Murphy 1989
Facts: 1 bedroom flat let to a couple. Included a provision stating the landlord and unspecified other people could share the flat with the tenants. Deemed a sham clause. Although the couple signed separate documents, they had unity of title since the documents were interdependent and identical. Unity of interest was present in that, while the rent was split, they were jointly and severally liable for the full rent. Additionally, landlord had asked if they wanted single or double beds, and they had asked for a double bed - clearly intending to share the flat as a couple.
Significance: Sham clause example. Cohabiting couple had joint tenancy.
Antoniades v Villiers 1990
Facts 4 rooms in a shared flat. Each person had an individual arrangement with owner, started occupations at different times and all paid different rents. If somebody left, landlord could introduce somebody else. Court held that there was no joint tenancy – interests started at different times, separate documents, and all of them had different obligations to pay different amounts of rent.
Significance: No joint tenancy in a transient group
AG Securities v Vaughan 1990
Facts: Couple who moved in at same time then separated. Court held that they were severally liable for their own rent, so no unity of interest. When one left, remaining one offered to pay the full rent and the landlord refused. Since there was no unity of possession, and D could not prove sham clauses, was deemed a licence.
Significance: Couple who had separated did not have joint tenancy on the facts
Mikeover v Brady 1989
Facts: Tried to grant lease for the duration of WWII. Uncertain term.
Significance: Certainty of term - term can’t be based on an uncertain end point
Lace v Chantler 1944
Facts: Lease for land next to a highway, with a duration “until required to widen the road”. Land was sold to another, who tried to terminate the lease. Leaseholder said could only be terminated for road-building. Court held that the uncertain term voided the lease, but since the rent was paid yearly, the lease would be a yearly lease, and new owner could terminate on that schedule.
Significance: A certain term can be implied through the rent calculation period
Prudential v London Residuary Body 1992
Facts: Land behind four houses with a shed on it had been leased to a business, with weekly rent. The lease was assigned and freehold bought several times, leading to confusion about the dates. Found to be a weekly tenancy.
Significance: Authority for calculation
Ladies Hosiery v Parker 1930
Facts: Occupation was granted while the terms of the lease were still being negotiated. Rent was being paid quarterly during this time. Negotiations broke down, tried to claim tenancy protections. Court ruled it was a tenancy at will, not a quarterly tenancy.
Significance: Payment of periodic rent only creates the presumption of a periodic tenancy. It can be rebutted on the facts.
Javad v Aqil 1991
Facts: Sold house to raise money to housing cooperative who rented it back to her. Limited power for landlord to terminate as long as tenant paying rent. Landlord tried to terminate claiming a monthly periodic tenancy. Court created a tenancy for life under s149(6) which is converted to a lease of 90 years.
Significance: Example of certainty of term not being strictly required, but is a controversial decision.
Berrisford v Mexfield 2011
Facts: Lease with uncertain term. Tenants tried to argue Mexfield, saying that it created a 90-year tenancy. However, the intentions of the parties had not been to grant a lease for life (unlike Mexfield). Agreement was re-classified as a periodic licence.
Significance: Limits Berrisford v Mexfield by saying the intention to create a lease for life must be present for Mexfield to apply.
Southward Housing Cooperative v Walker 2015
Leases of three years or less can be created through oral agreements
s54(2) LPA 1925
Disposition of a registered estate or registered charge does not operate at law until any applicable registration requirements are met.
s27(1) LRA 2002
Lists events during which title must be registered
s4 LRA 2002
Facts: Married couple lived in a flat let on a weekly tenancy. Couple divorced, verbally agreed to transfer tenancy to wife. Landlord then served notice to quit on wife, which was valid because tenancy had not been transferred by Deed.
Significance: Assignment of a weekly tenancy must be by Deed.
Crago v Julian 1992
Facts: Quiet enjoyment covenant from landlord. Housing authority had failed to soundproof accommodation (so every day sounds from neighbouring flat came through the walls), but since it related to the state of the building before the tenancy, it was not a breach of covenant. Court did allow that excessive noise could be a breach in different circumstances.
Significance: Tenants take possession of premises in the condition they found them in. Pre-existing lack of sound insulation was not a violation of a quiet enjoyment covenant.
Southwark London Borough Council v Mills
Facts: Court implied obligation for landlord to maintain common areas (unless clearly placed on the tenants).
Significance: Example of implied covenants
Liverpool City Council v Irwin 1977
Implies a covenant by the lessor that a dwelling it fit for human habitation during the term of a lease
includes exclusions/exemptions
Section 9(A) LTA 1985
Implies a covenant by the lessor of a short lease to keep in repair the structure and exterior of the dwelling and necessary fixtures
Section 11 LTA 1985
Facts: A paved area outside of a letted building fell into disrepair, and a subtenant was injured. Question was whether the area was part of the “exterior of the building”, and whether the headtenant could be held liable.
Significance: Paved area was separate from the exterior of the building - to interpret otherwise would be too wide. Headtenant could only be held liable if noticed of the disrepair.
Edwards v Kumarasamy 2016
Facts: Tenant complaining of excessive damp and mould in the flat she leased. Tenant was appealing against damages, saying the judge had failed to consider that the landlord had neglected to repair the damaged plaster. Court ruled in tenant’s favour, considering that plaster is typically part of buildingworks rather than decorative.
Significnace: Plaster is part of the structure, unless merely decorative.
Grand v Gill 2011
Lessee must use the premises in a tenant-like manner
s11(2) LTA 1985
Facts: Landlord tried to recover from tenant costs of repairing damp damage, as mistakenly believed tenants had an implied covenant to keep the flat “wind and water tight”. Court found the tenant’s only implied covenant was to use and maintain property in a tenant-like manner, and the damage was from fair wear and tear, so landlord could not recover the costs.
Significance: tenant must maintain property in a tenant-like manner (“residual tenant liability”).
Warren v Keen 1954
Facts: Inherent defect in the window seals led to condensation, and house was near-uninhabitable in winter. Court gave restrictive definition of repair, so that inherent defect did not fall under the definition of disrepair.
Significance: Only obligation to repair if actual damage to property. Note: since 2018 legislation, now an implied fitness for habitation covenant. This case was in 1985.
Quick v Taff Ely BC
Facts: A leaky drain caused nuisance to the neighbours, who sued both the landlord and tenant of leaky property. Under the lease, tenants had some responsibility for repair. Court found that tenants were responsible for repairs if pointed out by landlords, landlords are presumed to know the state of the premises and were liable for nuisance if allowed to continue, tenants were jointly liable for nuisance by failing to abate, determining if work = repair depends on looking at work as a whole, and the work required fell outside the scope of the tenant’s covenant.
Significance: Obligation to repair is not an obligation to renew – needed a new foundation. Value of repair vs value of property.
Brew Brothers Ltd v Snax Ltd 1970
Imposes reasonableness on landlord when deciding consent for alienation (can’t unreasonably withhold)
s19(1) LTA 1927
Facts: Office building tenant looking to assign the lease. New lettor wanted to use it to provide serviced short term office accommodation. Landlord refused consent saying the value of the reversion would be diminished. It would disproportionately benefit the landlord to refuse the assignment, as the premises would be vacant and landlord would still be collecting rent. Court ruled that his reasons were refusing were not founded in fact, and the disproportionate benefit to landlord/detriment to tenant made it unreasonable.
Significance: Example of unreasonable refusal
International Drillings Fluids v Louisville Investments 1986
Landlord cannot unreasonably delay, cannot deny consent unreasonably, and burden of proof for reasonability is on the consentor
s1 Landlord and Tenant Act 1988
Imposes reasonableness on landlord when deciding consent for improvements (can’t unreasonably withhold)
s19(2) LTA 1927
