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39 Cards in this Set
- Front
- Back
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What are the 2 types of leasehold covenant?
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Express and implied.
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What are some common covenants?
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landlord: pay some outgoings/ be responsible for certain repairs.
tenant: pay rent/ be responsible for wear and tear/ not to decorate. |
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What are the 2 main implied covenants?
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1) Quiet Enjoyment
2) Obligation to Repair |
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Which case concerns implied covenant to quiet enjoyment?
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Southwark LBC v Mills (2001)
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Southwark LBC v Mills (2001)
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The landlord impliedly covenants that neither he nor anyone claiming under him will do anything which 'substantially interferes with the tenant's title to or possession of the premises, or his ordinary and lawful enjoyment of the premises.'
Southwark LBC leased flats which had inadequate sound insulation. -The HL held that there was no breach of implied covenant for quiet enjoyment as the 'structural defect' was not one for which the landlord assumed responsibility. -the level of noise generated by the neighbours was reasonably acceptable as a consequence of proper and ordinary use. |
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Which cases concern implied obligation to repair?
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Southwark LBC v Mills (2001) and Lee v Leeds City Council (2002)
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What does Southwark BC v Mills say with regards to obligation to repair?
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the parties are 'free to let and take a lease of a poorly constructed premises and allocate the cost of putting them in order as they see fit.
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What is stated in Lee v Leeds CC (2002)?
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local authority landlords were obliged to 'take steps to ensure that the condition of a house which is let for social housing is such that he tenant's article 8 ECHR rights are not infringed.'
However, this is still not a 'general and unqualified guarantee of quality'- it will depend on a balance between the needs of the community and the democratic determination of budget priorities. |
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What is the Law Commission's stance on obligations to repair?
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They have recommended that there should be a new statutory principle whereby all repairing liability should fall upon the landlord, in absence of an express contractual term allocating such responsibility to the tenant.
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What is set out under the Landlord and Tenant Act 1985 section 11?
What types of lease does it apply to? |
(it only apples to leases of less than 7 years)
the landlord is responsible for repairs to exterior, maintenance of supply systems and installations for space heating and water. -the landlord is only liable when he is given notice of the defect. |
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Which case sets out that there is an implied condition that the premiss should be reasonably for for habitation (ie. not infested with bugs)
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Smith v Marrable (1843)
-a breach entitles the tenant to quit the tenancy immediately without notice. -This does not apply to defects which occur AFTER the commencement of the lease. |
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What was stated in Hussain v Lancaster CC (2000)?
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-the council was not liable for nuisance.
-the landlord is only liable for such conduct that he/it has authorised or adopted. -as the council did not authorise or condone the 'horrifying racial abuse' they could not be held liable for breach of covenant for quiet enjoyment. |
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What is assignment of a tenancy?
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the transfer of the entire interest which a tenant holds to a 3rd party.
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What is sub-letting?
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when the tenant grants a sub-lease out of the property or part of the property for a period which is shorter than his original lease.
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What is the general rule regarding assignment/sub-letting?
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a tenant is generally allowed to assign or sublet provided there is not a covenant prohibiting restricting it.
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What is the result of assignment/sublet contrary to covenant?
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-If the prohibition is absolute the assignment/sublet will be valid but will constitute a breach of covenant.
-If the prohibition is qualified, any assignment/ sublet without consent will be a breach of covenant. |
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Which provision states that a landlord's consent to assignment/ subletting must not be unreasonably withheld?
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Section 19 Landlord and Tenant Act 1927.
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What is stated under section 1(3) Landlord and Tenant Act 1988?
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upon receipt of a written request for consent to assign, the landlord is under a duty to give consent within a 'reasonable time' unless it is reasonable to withhold consent.
what is 'reasonable' depends on the facts of the case. |
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What are the 2 separate sets of rules which apply to covenants?
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1) Those which apply to covenants in leases created BEFORE 1/1/1996.
2) Those which apply to covenants in leases created on or AFTER 1/1/1996. |
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In covenants created before 1996, who is liable for breach?
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-the original parties (those who sign the contract) remain liable for duration of the lease even if the interest is assigned.
-This is due to the doctrine of PRIVITY OF CONTRACT (a contract can only exist between the parties who formed the contract.) |
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What is the impact of LPA 1925 section 77 and LRA 2002, schedule 12, para 20?
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If an action for damages for breach of covenant is brought against the original tenant when the tenancy has been assigned, there is an implied covenant that the assignee must INDEMNIFY the original tenant.
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What is the Rule in Spencer's Case?
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In order to transmit leasehold rights and obligation to assignees:
1) the assignees must take a legal estate in the land; 2) the covenants which 'run with the land' must touch and concern the premises in question. |
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What is the importance of the 'touch and concern' requirement?
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It ensure that only those covenants which are integral to the leasehold relationship are enforceable.
-PRIVITY OF ESTATE- an assignee is under no liability for breaches outside the remit of his tenancy. |
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What is the liability for sub-tenants under the pre-1996 rules?
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there is no privity of estate between landlords and subtenants, so liability does not transfer.
Therefore, the covenant remains enforceable between the landlord and the original tenant. -Thus, it is in the interests of the original tenant to include all of the terms of the head lease in the sub-lease. |
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What happened in Tulk v Moxhay (1848)
-regarding the operation of sub-tenant covenants in equity. |
T sold a vacant portion of his land in leicester square to E, who covenanted that he would keep the land in an open state.
-the land was later conveyed to M who has full knowledge of the restrictive covenant between T and E. -The court upheld an injunction restraining M from breaching the covenant on the grounds of equity- because he had NOTICE at the time of purchase. This suggests that 'restrictive covenant's may be enforceable against a sub-tenant in equity. |
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What was the effect of the Landlord and Tenant (Covenants) Act 1995?
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the original parties are freed from continuing liability of covenants after assignment- the benefit/burden is annexed to the lease instead so it passes automatically on assignment.
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Landlord and Tenant (Covenant) Act 1995, Section 5?
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a tenant is only liable for breaches committed during his/her term.
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Landlord and Tenant (Covenant) Act, Section 3?
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on assignment, then benefits and burdens attach to the new assignees.
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What is one of the main advantages for landlords under the new act? (section 16)
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when a tenant wishes to assign, the landlord an make the tenant enter into an 'authorised guarantee arrangement' as a condition of giving his consent to assignment.
-This requires the assignor to guarantee his assignee's performance of the covenants. |
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What is the second main advantage to landlords under the new act? (Section 22)
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the landlord and tenant can enter into an agreement specifying the circumstances under which a landlord may withhold consent to assignment/subletting in the future.
-the agreement does not have to be contained in the the lease, and it can be made any time up until consent is sought. |
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What is the position of sub-tenant under the post-1996 laws?
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There is still no privity of contract or estate between the landlord and subtenant, so AT LAW, no covenants can be enforced (as under the old law)
-However the rule established in Tulk v Moxhay (1848)- that restrictive covenants may be enforceable in equity, has been codified under section 3(5) Landlord and Tenants (Covenant) Act 1995. |
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What is the position of sub-tenant under the post-1996 laws?
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There is still no privity of contract or estate between the landlord and subtenant, so AT LAW, no covenants can be enforced (as under the old law)
-However the rule established in Tulk v Moxhay (1848)- that restrictive covenants may be enforceable in equity, has been codified under section 3(5) Landlord and Tenants (Covenant) Act 1995. |
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What is the position of sub-tenant under the post-1996 laws?
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There is still no privity of contract or estate between the landlord and subtenant, so AT LAW, no covenants can be enforced (as under the old law)
-However the rule established in Tulk v Moxhay (1848)- that restrictive covenants may be enforceable in equity, has been codified under section 3(5) Landlord and Tenants (Covenant) Act 1995. |
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What are the 4 remedies for breach of covenant?
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1) Damages;
2) Injunction and specific performance; 3) Termination of lease by forfeiture; 4) Waiver |
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What is the only situation where damages cannot be awarded for breach of covenant?
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for non-payment of rent.
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Which case states that the courts generally avoid awarding injunctions/specific performance when damages will suffice?
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Insurance Society v Argyll Stores (1998)
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What are the 2 types of waiver?
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express and implied.
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What are the 2 steps required for waiver to be effective?
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1) the landlord has knowledge of the breach; and
2) the landlord does some act which, expressly or impliedly communicates to the tenant that the lease will continue, nothwithstanding the breach. |
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What would be an example of implied waiver?
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continuing to accept payment of rent.
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