rights and liabilities of l&t

8/13/2019 Rights and Liabilities of L&T

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UNIT 2: RIGHTS AND LIABILITIES OF LANDLORDS AND TENANTS

Upon completion of this unit, students should be able to:

i) identify the usual covenants on the part of both the landlord and tenantwhich are contained in a lease;

ii) explain the effect of all of the covenants referred to above in (i);iii) determine from instructions received whether there has been a breach ofany covenant(s) contained in a lease and advise/explain the rights and/or

liabilities accruing to the parties as a result of such breach(es);

iv) state, explain and apply all relevant legislation in relation to all covenantsreferred to in (i) above.

LANDLORDS COVENANTS

1. ovenant for !uiet "n#oyment[EXAM NOTICE]

2. $on derogation from %rant

&hese do not re'uire the landlords consent. &hey are imposed by the common law. &hey cannotbe contracted out of regardless of whether this is stated in the lease.

1. Covenant for Quiet Enjoyment

&his covenant contains the following terms:

i) that the tenant shall be put into possession (only in territories where thedoctrine of interesse termini (*$&"+"" &"+-*$*, estates. n interest in the

term. &he demise of a term in land does not vest any estate in the lessee, but

gives him a mere right of entry on the land, which right is called his interest inthe term, or interesse termini) still survives);

ii) the tenant shall have 'uiet en#oyment of the premises.

t common law, there is implied in every lease a covenant on the part of the landlord that thetenant shall be put into possession and that he shall have 'uiet en#oyment of the premises during

the continuance of the lease.

&he tenant is entitled to recover damages from the landlord, if the landlord or any other person

claiming through him substantially disturbs or physically interferes with the tenants en#oyment

of the land. &he tenant may also apply for in#unctive relief.

&his covenant may be express or implied. $ote however that an express covenant for 'uiet

en#oyment excludes an implied covenant for same.

Miller v Emer !r"#$%& L%# ['()*] C+, -./

andlords demised premises to a tenant together with the right to use two lavatories on upperfloors which were occupied by a third party. &he grant contained a covenant for 'uiet en#oyment

of the demised premises without interruption from the landlords 0or the superior landlords0 or any

person rightfully claiming under or in trust for them. &he tenant was prevented by the third party

from exercising his right to use one of the lavatories and he sued his landlords, alleging a breach

of an implied covenant that they had a good title to convey to him the right to use the lavatories,

and, alternatively, a breach of an implied covenant that they would put him into possession of the

right demised to him. &he third party held under a title paramount to the landlords in 'uestion and

to 0the superior landlords0 mentioned in the express covenant:1

3 A Page 2


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3eld:

&he right which the landlords had purported to grant was a legal easement and was part of the

demised premises to which the covenant for 'uiet en#oyment contained in the underlease related.

&he court doubted that an obligation to put the tenant into possession, even if it was implied,

could be applicable to the grant of an easement to use accommodation in common with others. *nthe present case the tenant was put into possession of all that part of the sub#ect1matter of the

grant of which he was entitled to exclusive possession.3owever, even if such an obligation (to 4put the tenant into possession5 of the easement) could

and should be implied in a formal demise, it would be in pari materia with the implied covenant

that the tenant should remain in possession thereafter, and since implied covenants are displaced

by express covenants where the former are covered by the latter, the implied covenant would

have been displaced by the express covenant for 'uiet en#oyment in the underlease, under which

the landlord was not liable for the acts of the third party, so that the landlords were not in breach

of covenant.

(2) that the right which the landlords had purported to grant was a legal easement and was part of

the demised premises to which the covenant for 'uiet en#oyment contained in the under lease

related.

(6) &hat that 'ualified covenant displaced any covenant for title or 'uiet en#oyment implicit in thedemise.

(7) emble, that 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 landlord and tenant, for

there was implicit in a demise a covenant for title and 'uiet en#oyment which extended to puttingthe tenant into possession of the premises leased to him at the outset of his term as well as

entitling him to remain in possession thereafter.

(8) !uaere whether an obligation to put the tenant into possession, even if it was implied, could

be applicable to the grant of an easement to use accommodation in common with others. *n the

present case the tenant was put into possession of all that part of the sub#ect1matter of the grant of

which he was entitled to exclusive possession.

(9) &hat, 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 the tenant should remain in possession thereafter,and it would, therefore, be displaced by an express covenant for 'uiet en#oyment, such as that in

the underlease, which had displaced the covenant implied from the word 0demise.0

ccordingly the landlords were not in breach of covenant.

0er R"me1 L,, 3 0,-'4 e% &e5,

4*t has long been established that, if a lessor demises property to a tenant and enters into noexpress covenants for title or for 'uiet en#oyment, certain promises are implied by him by force of

the word 0demise,0 namely, that he is entitled to grant some term in the demised premises, and

that the lessee shall have 'uiet en#oyment of the premises; urnett v ynch; 3art v indsor. *t

was pointed out in ine v tephenson that these promises are more properly to be regarded asembodied in one single implied covenant, and that this covenant may be bro


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b. bsolute

a) &he 'ualified/restricted covenant is the more usual of the two and by it the landlordunderta>)

y an agreement in writing the defendants agreed to let to the plaintiff certain premises for one

year from eptember 6@, 2A98, and so on from year to year. &he plaintiff sued the defendants,

alleging a failure or refusal by them to give or let the plaintiff into possession on the agreed date

or subse'uently. &he defendants demurred on the ground that the agreement did not contain anycontract on the part of the defendants to give the plaintiff possession of the premises. &he

authority of C"e v, Cl78which gave the effect that every person who lets premises impliedly

underta


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from exercising his right to use one of the lavatories and he sued his landlords, alleging a breach

of an implied covenant that they had a good title to convey to him the right to use the lavatories,

and, alternatively, a breach of an implied covenant that they would put him into possession of the

right demised to him. &he third party held under a title paramount to the landlords in 'uestion and

to 0the superior landlords0 mentioned in the express covenant:1

Hel#: that 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 landlord and tenant, as was done inC"e v Cl78 and i1'*

*n this case, the landlord, having reserved the right to wor< minerals under the demised land

conducted mining operations in such a way as to cause the land to subside.

&he court found that a contract for 'uiet en#oyment without interruption by the defendant, or any

one claiming through her, was implied by the word 0let0.

7lli& v H71#& ['4(-] 2 C+, >) 3 0,4/@4)

person having only an interesse termini cannot maintain an action on a covenant for 'uieten#oyment; neither can he maintain an action for trespass, or for damages.

4&here has been no disturbance of possession in this case. &he ?laintiff has merely an interesse

termini under the lease of 2AAC; he has not only never been in possession of the property

comprised in that lease; but there is no evidence of his ever having even attempted to ta


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letters to the tenant and by shouting at her and banging on her door, to ta


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R7m v R7m'

ourt confided the meaning of 4peaceably and 'uietly5 &he let 6 rooms to a & andsubse'uently let the top room for a dance, so the & bought an action against the . The

courts said that quietly does not mean undisturbed by noise, in fact it has nothing to do

with noise, instead it means without interruption of possession. o the & would not

necessary have an action against the for breach of 'uiet en#oyment, but he may havebought an action for nuisance.

reach of the Covenant for Quiet Enjoyment

&his covenant is bro


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premises not to interfere with the tenants exercise and use of the right of possession during the

term. * thin< the word e1"8used in this connexion is a translation of the atin word 4fruor5

and refers to the exercise and use of the right and having the full benefit of it, rather than to

deriving pleasure from it.5

E!"#$ %eeing only & fact in the e'am question, that does not mean that the court would find

the same in the e'am fact pattern.

S71#er&"1 v M78"r "J Ber=i< U0"1 T=ee# 9'44/ '- BD )/> 0er Fr8 L, 3 0,))'

4Lit appears to us to be in every case a 'uestion of fact whether the 'uiet en#oyment of the land

has or has not been interrupted; and where the ordinary and lawful en#oyment 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 bro


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upon the demised premises on the part of the landlord or some person authori=ed by him.

(6) &hat the 'uestion whether the 'uiet en#oyment of the demised premises had been so

interruptedwas one of fact and the #udge in the present case was entitled to find, as a fact, that

the scaffold poles constituted a substantial interference with the demised premises.

B""%+ v T+"m7& ['(2*] ' C+ -(>

*n 2AC@ the owner of land, which was covered with slag and through which ran a natural stream,enclosed the stream in a culvert. *n 2AAK he granted to certain persons a lease for ninety1nine

years of part of the land with the building on it, retaining the ad#oining part through which the

culvert ran. &he foundations of the south wall of the building did not reach the soil, but rested on

the slag. &he lease contained an express covenant by the lessor for 'uiet en#oyment. *n 2@68 the

culvert was in a bad state of repair, with the result that the stream bros 'uiet en#oyment of the land, and that

therefore the plaintiff was entitled to succeed on the ground of breach of covenant for 'uiet

en#oyment.)eld,also, that the covenant was not confined to active disturbance of en#oyment, and that the

omission to 2 "J '((*

NOTE:since there must be some physical interference with the en#oyment of the premises let,

mere noise or disorderly conduct emanating from the landlords ad#oining premises may not

amount to breach of the covenant for 'uiet en#oyment, though it may be actionable as a nuisanceor constitute a derogation from the lessors grant, if the latter has participated in it. here no

participation by the lessor is proved, he will not be liable merely for having failed to ta


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gets rid of the difficulty that a covenant for #uiet en$oyment applicable to this case cannot be

implied. %here there is an e&press covenant for #uiet en$oyment in a lease it e&cludes any implied

one' (ine v )tephenson. An action therefore will not lie on the ground of implied covenant, but it

will lie on the ground I have stated.

"ldin v Clar ['4(/] 2 C+, /-> 0er S%irli1; 3 0,/// //>

&he grantor of land to be used for a particular purpose is under an obligation to abstain fromdoing anything on ad#oining property belonging to him which would prevent the land granted

from being used for the purpose for which the grant was made.

here, therefore, 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:1

Held, that the assigns of the less or were not entitled to build upon ad#oining property ac'uired 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.

The result of these $udgments appears to me to be that where a landlord demises part of his

property for carrying on a particular business, he is bound to abstainfrom doing anything on theremaining portion which would render the demised premises unfit for carrying on such business

in the way in which it is ordinarily carried on, but that this obligation does not e&tend to special

branches of the business which call for e&traordinary protection. *the grantor of land to be used

for a particular purpose is under an obligation to abstain from doing anything on the ad$oiningproperty belonging to him which would prevent the land granted from being used for the purpose

for which the grant was made. This seems to accord with the general rule that a grantor may not

derogate from his own grant, and to be far more consonant with $ustice than that contended for

by the +efendants, vi., that the grantee has no right of action unless the grantor can be proved

to be acting maliciously.

!"r% v GriJJi%+ ['(-4] ' All ER 2() 0er L$6m""re 3 2((

&he defendants let a shop for a term of 62 years to the plaintiff, the latter covenanting to use andoccupy 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. ome K years later, the defendants let the ad#oining shop sub#ect to a

similar covenant, the business stated being for the sale of tailor and dressma


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and would compel them to insert a covenant restraining the carrying on of any business similar

to the plaintiffs business in any subse#uent 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 ad$oining,

or to draw a line defining which of the premises were to be sub$ected to such a restriction.

e118 v !ree1 S$0r7

Br"=1e v Fl"=er S$0r7*n eptember, 2@E9, a flat consisting of twelve rooms on the ground, first, and second floors of M.

mansions was let to -rs. . *n $ovember, 2@EC, a flat on the ground floor of the mansions was let

to the plaintiffs. oth flats had windows overloos

agreement contained a clause prohibiting the use of her flat otherwise than as a dwelling1house,

and the plaintiffs> agreement comprised a covenant for 'uiet en#oyment and a stipulation that they

should not use their flat otherwise than as a private residence. "ach agreement contained a

stipulation that the tenants would not do anything on the demised premises which might be a

nuisance to the lessors or to the occupiers of ad#oining premises or which might tend to lessen the

value thereof. *n 2@E@ -rs. . subdivided her flat and, with the consent of the lessors, erected an

open1wor< iron staircase from the garden to an entrance to her fiat on the first floor; and in 2@2E

let it and the part of her flat to which it gave access to J. &he staircase was situated between the

windows of two of the bedrooms in the plaintiffs> flat, and the fact that it was used as the onlyaccess to J.>s flat seriously affected the plaintiffs> privacy, for persons using the staircase could

see directly into the rooms.

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 ordemised unfit or materially less fit for the particular purpose for which the grant or demise was

made.

/nder these circumstances the #uestion is whether the e&istence of this staircase renders the

plaintiffs" premises unfitor materially less fit to be used for the purposes for which they weredemised, that is, for the purposes of a residential flat. In my opinion it does not. The two rooms in

#uestion can be and are still in fact used for the same purpose 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 has been done. 0ither they have less privacy, or if they secure theirprivacy by curtains they have less light. uch as I sympathie with the plaintiffs, it would, in my

opinion, be e&tending the implications based on the ma&im that no one can derogate from his own

grant to an unreasonable e&tent if it were held that what has been done in this case was a breach

of an implied obligation.

M7r


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Held(affirming the decision of the Oice1hancellor of (ancaster), that the ?laintiff was entitled

to restrain the Iefendant from excavating so as to let down the ?laintiff>s house, for that there was

not enough in the special circumstances of the case to ta


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applied to him, there are as well, warranties which may be given or implied with respect to the

condition of demised premises.

t 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. &his is so even where thelandlord


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stipulation to the contrary, be implied a condition that the house is, at the commencement of the

tenancy, and an underta


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iv) binding on successors in title of the original landlord.

N,B, here title is registered such options are only binding on purchasers of the reversion ifentered on the register or certificate of title.

""#7ll v CliJ%"1 ['(.)] 2 C+, 2)>

lease of land for ninety1nine years granted in 2AKC 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 9EEl. per acre, the lessor, his heirs or assigns, on receipt of the purchase1

money, would execute a conveyance of the land in favour of the lessee, his heirs and assigns.

*n 2@E8 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:1

Held,by the ourt of ppeal, that the proviso or covenant did not come within the statute 76

3en. A, c. 78, so as to ma


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years from 69 Iecember 2@7A, determinable by the lessee at the end of seven or fourteen years, at

a rent of F2,9EE a year. clause in the lease referred to 4ma


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administrators,0 a fresh lease, sub#ect 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 ta


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over after the expiration of the original lease.

Re Lee0& 71# B7%el8 Bre=erie& 71# Br7#$r8& Le7&e

&he option attaches to and forms part of the lease so that its benefit passes on to an assignee of

the tenants interest.

GriJJi%+ v !el%"1 ['()4] ' C+, 2.)

y a lease dated -ay 2C, 2@79, ?. demised certain freehold property to . for a term of 62 yearsfrom -arch 69, 2@79. &he parties to the lease were thereinafter respectively described as 0>the

lessor,> which expression shall include the estate owner or estate owners 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.0 &he lease contained a proviso that 0if the lessee shall within the period

hereinafter prescribed give to the lessor six monthsH notice in writing of the desire of the lessee

to purchase the fee simple of the demised premises ... then the lessor shall on the expiration of

such notice and upon payment of Pa named sumQ ... assure the said premises unto the lessee for an

estate in fee simple in possession ... ?rovided nevertheless that this option ... shall not be

exercised during the lifetime of the present lessor the said P?.Q but shall be exercised within one

year next after his death if he shall die during the term hereby granted and nothing herein

contained shall be construed as giving to the lessee any option to purchase the fee simple of thedemised premises at any time after the expiration or sooner determination of the term hereby

granted unless the aforesaid notice shall have been given by her before such expiration or

determination.0

y an assignment dated ugust 7, 2@8A, . assigned to the plaintiff for a named sum the property

comprised in and demised by the lease for the residue of the term thereby granted. &his document

contained no reference to the option.

?. died on -arch 6, 2@9K, and probate of his will was granted to the defendant on pril 27, 2@9K.

y a deed dated -arch 66, 2@9K, . gratuitously assigned (or purported to assign) the benefit of

the option to the plaintiff if and so far as not already vested in him. Dn the same day the plaintiff

gave notice in writing of the assignment 0to the personal representative or personal

representatives0 of ?. lso on the same day the plaintiff gave to 0the personal representative orpersonal representatives0 of ?. notice in writing exercising the option. &he term granted by the

lease expired on -arch 69, 2@9K.

Dn the 'uestion whether the benefit of the option was effectually vested in the plaintiff, either (a)

by the assignment of the lease dated ugust 7, 2@8A, or alternatively (b) by the deed of -arch 66,

2@9K:1

Held, (2) that on the true construction of the proviso contained in the lease, including the

definition to be read into it of the expression 0lessee0 as including the lessee>s assigns, the original

parties to the lease must be ta


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essential characteristics of an option in gross. ccordingly, under the option provisions in the

present case . was entitled as a matter of contract to assign the benefit of the option contained in

the lease to the plaintiff as her assignee of the term, so as to entitle the plaintiff to enforce it

against the defendant, who, as the executrix of the original lessor, was bound by her testator>s

contract.

TE+"+T% C/4E+"+T%

', T" 078 re1%

a2 +ature

+ent is the 'uantum of money or moneys worth which is payable to the landlord by the tenant as

compensation for the tenants use and occupation and exclusive possession of the demised

premises. *t forms part of the contract. &he ddendum operates to reserve the rent: amount, date

of commencement and when payable.

&he ddendum where the rent is received and the 'uantum and the manner of payment of the rent

is specified, it is here where the periodic lease, guidance is necessary from here where the rentshould be paid and at what time. *t does not matter whether the parties tend to shift away.

3e is bound by his covenants to pay the rent, where however there is failure to pay, or actions

accrued against the landlord, it is there in the ddendum.

t common law rent which is not expressed within the body of the lease, all you do is agree how

much the rent is, and times to be paid. *f you omit rent is payable in advance, it is available by

way of arrears.

M"1%7;$e v Br"=1i1; 0er De11i1; L,, 3 0,*./ ['()/] 2 All ER *.'

&he rent must be fixed, certain or ascertainable.

78ent is usually #uantified 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 8ent 8estrictions Acts, in cases when

rent is payable, not in money, but in ind, as in goods or services, then, if the parties have by

agreement #uantified the value in terms of money, the sum so #uantified is the rent of the house

within the meaning of the 8ent 8estrictions Acts, and, if it e&ceeds two!thirds of the rateable

value, the house is within the Acts.9

"xamples of payment which are not rent are:

(i) premiums payable in consideration of the grant of a licence where there is no right of

exclusive possession.(ii) payment for grant of an easement or other incorporeal hereditament.

(iii) other payments reserved by the lease in ADDITIONto the rent.

b2 (eservation

-ay be express or implied from a covenant by the tenant to pay rent. &he covenant to pay rent is

usually introduced by the words 4yielding and paying5.

HOEVER, no particular form of words is re'uired so long as the intention of the parties to

reserve a specified rent is clear. Dnce this intention is evinced it will amount to an implied

agreement on the part of the tenant to pay rent.

3 A Page 2@


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c2 Time and mode of payment of rent

*n the absence of an express term to the contrary, rent is payable in arrears at the end of a period

in a periodic tenancy.

C"lle%% v C$rli1; 9'4/> '. B >4)

pecific terms relating to the time for the payment of rent are to be found in the reddendum.

&hus a yearly rent may be payable monthly or 'uarterly and may also be made payable in

advance.

d2 To whom rent is payable

+ent must be paid to the lessor or to someone who is expressly or impliedly authorised by the

lessor to receive it.

e2 Estoppel

?ayment of rent is a 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.

C""


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either the value of their gold content as bullion (eg, F9,K2E Ks 2d, on 6@ eptember 2@99) or the

value of the sovereigns as vendible coins (eg, FK,826 2Es at that date) the value in either case

fluctuating with the mar


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b) a restrictive covenantprovided the purpose for which the premises are used is not unlawful, does not create a nuisance

and does not amount to waste.

Re&%ri%ive "ve171%& m78 e:

i) $egative in form and substance, e.g. not to carry on trade.

ii) ?ositive in form but negative in substance, e.g. to use the premises as a private dwellinghouse only.

!7r


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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.9

b2 reach of the Covenant hether or not there is a breach of the covenant depends upon proper construction of the

covenant in light of the relevant cases, but note the following:

Germ71 v C+70m71 9'4>> > C+, D, 2>'

&he user of the premises for trade or business (school) was a breach of the covenant to use as a

private dwelling house only. &his case shows that even a partial or minor use as a business will

amount to a breach.

0ord 7ustice 7ames *89, ..... :6;f there is a general scheme for the benefit of a great number of

persons, and then, either by permission or acquiescence, or by a long chain of things, the

property has been either entirely or so substantially changed as that the whole character of the

place or neighbourhood has been altered so that the whole object for which the covenant was

originally entered into must be considered to be at an end, then the covenantee is not allowedto come into the Court for the purpose merely of harassing and annoying some particular man

where the Court could see he was not doing it bona fide for the purpose of effecting the object

for which the covenant was originally entered into. That is very different from the case we

have before us, where the C+ D -)-&he erection of a stadium was held to be a breach against use for business and as a private

dwelling house only.

T+"r1 v M7##e1 ['(2)] C+, 4/>

+eceiving 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 thepurpose for trade and business.

Se;7l Se$ri%ie& v T+"&e8 ['(*-] ' All ER )..

*n 2@92 the defendant ac'uired the sub1lease of a maisonette at "aton ?lace, ondon, for theresidue of a term of twenty1one years expiring on 72 Banuary 2@K@. &he sub1lease contained a

tenants covenant 4to use the demised premises for the purpose of a private residence in theoccupation of one household only5. &he maisonette was bigger than the defendant re'uired 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. *n Buly,

2@KE, the plaintiffs ac'uired the leasehold reversion of the sub1lease. *n the summer or autumn of

2@KE a -iss hitehouse, who was a friend of a friend of the defendant, was ta


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defendant regarded the transaction with her as a letting.

Hel# the defendant was in breach of the covenant to use the demised premises only as a private

residence during the period while -iss al


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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 $udge

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 thatcovenant was to be relied on, it would not be enough simply to allege that the sub!tenant and his

wife were in the house. ?ne does not cease to use ones house as a private dwelling!housebecause one has a married couple in it. If there was a breach, it must be because the sub!tenant

under his subleasewas given e&clusive 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 thin 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.

oth 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 thin, in law to distinguish for

this purpose and say that the one was done once for all and the other was a continuing breach.

c2 (emedies for reach

i) Iamages: normally this will be the only remedy unless there is a proviso for re1entry andforfeiture in the lease.

ii) *n#unctive +eliefiii) Morfeiture,where provided for by the lease.

d2 ischarge and #odification of (estrictive Covenants

*n &rinidad, there are no statutory provisions in respect of the discharge and modification of

restrictive covenants. *n its absence, therefore, the common law will apply.

C"mm"1 L7=

(a)+ere %+e l71#l"r#P7&&i;1ee rem7i1& i17%ive J"r 7 "1&i#er7le 0eri"# "J %ime =+ile

"0e1 re7+ i& "$rri1;,

He0="r%+ v, !i


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their predecessors:1

Held'

(a) *n 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 anaction to enforce them would be unmeritorious, not bona fide, and merely brought for some

ulterior purpose.

(b) *n order to succeed on the second ground the defendant must ma acts and omissions were such as to #ustify a reasonable person in

believing that the covenants were no longer enforceable.

*n order to predecessors had imposed covenants

preventing any house being used 0otherwise than as a private dwelling1house.0 &hey or the

plaintiffs had however licensed a number of schools, some bloc IR '>4

&he applicants proposed to purchase 0andfall0, a property situate at andy ane, t Bames. &hisproperty was sub#ect to various covenants by virtue of which its use was restricted, in substance,

to purposes connected with a dwelling1house. &he applicants sought the discharge or modification

of the covenants so as to permit use of the property for 0hotel, motel, lodging house and

apartments with allied facilities0. &he 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 e'istence of

the restriction; and

(c) that the proposed discharge or modification would not injure the persons entitled to the

benefit of the restriction.

Hel#: (i) that the property was in a clearly defined neighbourhood, 'uite distinct from the

surrounding areas and there had been 1" +71;e i1 %+e +7r7%er %+ere"J;

(ii) that the development of 0andfall0 for hotel, motel, lodging house or apartment use would

&0"il %+e 0riv78 71# 5$ie% "J %+e 1ei;+"$r+""# . *ncreased traffic and domestic staff with theconcomitant increase in noise would detract from the character of the enclave as a high1class

residential area and the court was not satisfied that this present use was unreasonable nor that

practical benefits did not ensure to other persons by the continuation of the covenants; and

(iii) the proposed discharge or modification ="$l# i1$re %+e 0er&"1& e1%i%le# %" %+e e1eJi% "J

%+e re&%ri%i"1,

(c)+ere 7 &i1;le "=1er e"me& e1%i%le# %" "%+ #"mi171% 71# &ervie1% %e1eme1%&,

3 A Page 6K


27/45

Re Til%=""# ['(>4] C+, 2*(

*n Bune 2@92, L %+e 0$r+7&erof 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. &he vendor toos summons for a declaration that the two lots of burdened land were no longer

sub#ect to the covenants in the 2@92 conveyance on the ground that the purchase by of part of

the burdened land had created unity of seisin of the benefited and that part of the burdened land: 1)eld, that, where the fee simple of land benefited and land burdened by restrictive covenants

became vested in the same person, the restrictive covenants were e'tinguished unless the

common owner recreated them?that, accordingly, since , the common owner, had not re1created

the covenants when dividing up and selling the land, the plaintiff, as purchaser of the burdenedland, was entitled to a declaration that she was no longer bound by the covenants which were

extinguished.

Te67" A1%ille& L%# v er1"+71 ['(>-] AC *./

*n 2@69 td which owned a tract of land in the ahama *slands prepared a building scheme

for part of the land. &he land allotted to the scheme was divided into 2A bloc


28/45

and cultivate the land in a husbandli


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7rre1 v ee1 ['()/] ' B ') 9S$0r7

wee


30/45

$ote the following:

i) &he covenant to insure may be express or implied.ii) tenants covenant to insure may re'uire that it be effected with insurers of whom thelandlord approves and in specified names.

reach of the ovenant to *nsure Iemised ?remisesi) here any part of the demised premises remains uninsured during the term of the tenancy.ii) here the insurance is not subsisting at anytime during the term.

(emedies for breach$

i) Morfeiture where expressly provided for in the lease.

ii) Iamages.

*, T" 078 R7%e& 71# T76e&

&he obligations of the parties depend upon the provisions of the lease and theapplicability of statute (no statutory provisions exist in &rinidad and &obago). *f the tenancy

expires and the reversionary interest goes bac< to the landlord, the covenant applies.

>, C"ve171% =i%+ re&0e% %" Al%er7%i"1& 71# Im0r"veme1%&

&here is usually contained within a lease a covenant on the part of the tenant not to ma


31/45

Ooluntary covenant, so the burden falls where so ever the parties desire. &he standard is the same

however. &he tenant having exclusive possession, so the ability of the to go in ma>

*n 2A8E, was granted a lease to run for K2 years, containing a covenant to


32/45


33/45

of the letting. &he lease contained covenants by the tenants 6(e) L to repair uphold support

maintain L and


34/45

A1&%r$%+er@G"$;+@C7l%+"r0e v M O&7r ['(2/] ' B >'*

lease of three newly erected houses made in 2A69 for a term of ninety1five 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 reparationsand would yield up at the end of the term the said premises so being in all things well and

sufficiently repaired.t 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. y an order of the ourt the assessment of the damages

was referred to an arbitrator. t the beginning of the term the houses were country houses; at the

end of the term the only tenants li


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or was down, the word


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exception, and that her executors were liable for the damage arising from the natural process of

decay.

The tenant 2for life or years3 is bound to eep 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 eep in goodrepair is sub$ect to that e&ception. If any want of repair is alleged and proved in fact, it lies on the

tenant to show that it comes within the e&ception. 8easonable wear and tear means thereasonable use of the house by the tenant and the ordinary operation of natural forces. The

e&ception 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 eep 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 re#uired

to prevent the conse#uences flowing originally from wear and tear from producing others which

wear and tear would not directly produce.

G$%%eri#;e v M"187r# 9'4-/ ' M""# R --/ 0er Ti1#7l C 3 0;, --*

Re;i& !r"0er%8 C", v D$#le8 ['()4] - All ER /(' rent controlled flat was let to a tenant on a monthly tenancy under an agreement by which the

tenant undertoo< internal repairs, fair wear and tear excepted. &he landlord undertoo< all exterior

repairs and the internal repairs caused by fair wear and tear.

*t was held that the exception for fair wear and tear in the tenants repairing covenant did not

except the tenant from responsibility for ta


37/45

damages will be the cost of repair.

He1#er&"1 v T+"r1 9'4(- 2 B '*/

lessor brought an action against the lessee during the currency of the lease to recover damagesfor breaches of covenant to


38/45

&he plaintiff was the freeholder of a listed building, which was occupied by the two defendants

under leases expiring in 6EE8 granted by the former freeholder of the property. &he defendants

covenanted in the leases to


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&here was a covenant by the landlord that he should


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second warehouse (warehouse no. 6) was constructed ad#acent to the first. ?ractical completion

too< place in Iecember 2@C7, and in -arch 2@C8 the defendants went into occupation.

supplemental underlease was granted on -ay 66, 2@C9, at an annual rent of F@6,9EE payable in

arrears. &he term granted was the same as that in respect of warehouse no. 2.

&he plaintiffs brought an action against the defendants for possession, unpaid rents, mesne profitsand interest. &he defendants counterclaimed for damages for alleged breaches of express or

implied obligations in the two agreements and underleases concerning the condition of the floorof both warehouses.

&he defendants claimed that in pril 2@C7 serious defects appeared in the concrete floor of

warehouse no. 2 due to inade'uate floor design, which caused them to evacuate the building from

Bune 2@C9 to Iecember 2@CK, and thereafter only part of the floor of warehouse no. 2 could be

used. imilar defects were alleged to have appeared in warehouse no. 6 in ugust 2@C8.

Dn the 'uestion whether the defendants were entitled in law or in e'uity to set off against the

admitted liability for rent the sums claimed against the plaintiffs for breaches of obligations to

repair: 1

3eld, that the defendants could set off their claim for unli'uidated damages against the plaintiffs>

claim for rent provided that the defendants> e'uity 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 onlyfair and #ust that the defendants> e'uity should be treated as going to the very foundation of the

plaintiffs> claim for rent and, therefore, the defendants were entitled to set off their claim under

the agreements against their liability for rent under the leases

Eller v Gr"veCre&% I1ve&%me1%& L%# ['((/] / All ER 4/)

&he plaintiff was the tenant of premises on an industrial estate. Mor some time he had complained,

to no effect, of alleged acts of nuisance and breach of covenant by the landlord and in Buly 2@@6

he decided to put pressure on the landlord by withholding his rent. &he landlord sent in bailiffs to

distrain on his goods and chattels and the plaintiff was obliged to sign a wal


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??????????????Lee@!7r


42/45

&he absolute covenant prohibits any parting with possession of the demised premises in any

circumstances.

&he 'ualified covenant prohibits the tenants parting with possession of the demised premiseswithout the consent of the landlord. uch a covenant may also be sub#ect to an express proviso

that the landlord will not unreasonably withhold his consent to an assignment or sub1letting.

&his


43/45

withheld in the case of a respectable and responsible person. Dn pril 7, 2@27, the lessee applied

to the secretary of the company for leave to sub1let to 3., a respectable and responsible person,

and as


44/45

body of trustees were the lessees of several houses on a large estate. &he leases, which had

been granted in 2@8C, were long leases at low rents within the easehold +eform ct 2@KC, but

the lessees held them only as investments and did not occupy any of the houses. ccordingly they

were not entitled to ac'uire the freeholds under the provisions of the 2@KC ct. &he lessees hadsublet the houses to sublessees who occupied them, but the rents under the sub1tenancies were not

low rents within the 2@KC ct. "ach lease contained a covenant that the lessees would not assignthe premises without the previous written licence of the PlessorsQ provided that such licence shall

not be unreasonably withheld. &he 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. *f the lease were

assigned, the sublessee would be entitled, after the lapse of five years, to ac'uire the freehold

under the 2@KC ct. &he lessors refused to give their consent to the assignment because they

wanted to


45/45

Fi%1e&& J"r 7 07r%i$l7r 0$r0"&e %+7% %+e 0remi&e& +7ve ee1 le7&e# J"r ver&$& %+e &%71#7r#

J"r re07ir %+e #i&%i1%i"1 %" e m7#e i& %+7% #i&re07ir #"e& 1"% re1#er 0remi&e& $1Ji% J"r

+$m71 +7i%7%i"1)amblett v rowne i& 1"% ""#i1;,

C"ve171% %" re07ir =+ere i% i& e1%ere# i1%" 8 %+e T ="$l# $&$7ll8 700e7r i1 7 l"1; %erm

Ji6e# %erm le7&e, "$ ="$l# m"re "mm"1l8 Ji1# %+i& i1 7 l"1; Ji6e# %erm, T+e =7rr71%8=+ere %+e L i1 re&0e% "J "1l8 7 J$r1i&+e# 0remi&e& ="$l# rel7%e %" ir$m&%71e& =+ere

%+ere 7re &+"r% le7&e i1 %+7% 7&e $1Ji%1e&& %" +$m71 +7i%7%i"1 ="$l# e $&e# J"ll"=i1;

%+e ;$i#eli1e& l7i# #"=1 8 C ""#i1;, T+7% l7< "J re07ir& reJer& %" %+e ;e1er7li%8 "J %+e

#emi&e# 0remi&e& 1"% "1l8 "1e 0l7e, M$&% rel7%e %" %+e "ver7ll "1#i%i"1 "J %+e $il#i1;

%+e &"$1#1e&& 71# &%r$%$re "J %+e $il#i1;,

!78 7%%e1%i"1 %" %+e #$r7%i"1 "J %+e le7&e 71# %"%7l #$r7%i"1 i1 #ei#i1; =+e%+er 8"$ 7re

;"i1; %" #i&$&& %+e "ve171% %" re07ir 8 %+e T "r %+e L "ve171% $0

rights and liabilities of l&t

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