Property Covenants

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Southwark London Borough Council

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QUIET ENJOYMENT

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Byrnes v Jokona

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QUIET ENJOYMENT
Applied Southward London Borough in Australia.

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Kohua v Tai Ping

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QUIET ENJOYMENT
Cutting essential services such as fire sprinklers was a breach.

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Perera v Vandiyar

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QUEIT ENJOYMENT
Cutting essential services such as gas and electricity was a breach.

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Berndt v Walsh

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QUIET ENJOYMENT

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Vasile v

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QUIET ENJOYMENT
Altering an adjacent property to obstruct T's customers which amounted to a breach.

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Musumeci v Winadell

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QUIET ENJOYMENT

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Martins Camera Corner v Hotel Mayfair

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QUIET ENJOYMENT
Filing to keep drain pipes clear/prevent water dripping into premises was a breach.

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Kenny v Preen

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QUIET ENJOYMENT
Do not need physical interference.

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Aussie Traveller

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QUIET ENJOYMENT
Do not need frustration of the country.
Can sue LL for a third party's actions where (1) LL is aware of actions of the other T (2) LL has the power of control (3) LL fails to exercise control.

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Karaggianis v Malltown

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DEROGATION FROM GRANT
Turning off the lift after 6pm for a restaurant was a derogation. Less appropriate for the purpose.

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Lend Lease Development v Zemlicka

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DEROGATION FROM GRANT
Demolition works which created less security and items stolen was a derogation of grant.

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Aldin v Latimer Clark

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DEROGATION FROM GRANT
Drying out the timber business. Derogation.
Leased for a timber business (clear purpose). LL owned the property next door and built a structure for generating electricity which depletes the air supply to the drying sheds for the timber business. T asks for an injunction to restrain LL’s activity. T succeeds because of the principle not to derogate from grant. This interferes with the drying process, a necessary incident of the timber business.

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Harmer v Jumbil

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DEROGATION FROM GRANT
Leasing adjacent premises knowing they would lose their explosives licence was a derogation.

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Robinson v Kilvert

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DEROGATION FROM GRANT
LL must know of the sensitivity/purpose.

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Port v Griffith

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DEROGATION FROM GRANT
Economic loss is insufficient, need actual loss.

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Robbins v Jones

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MAINTAIN THE PREMISES IN GOOD REPAIR IN A SHORT-TERM LEASE
At CL can rent any premises unless furnished swelling which must be fit for human habitation at beginning of the lease.

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Summers v Salford Co

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MAINTAIN THE PREMISES IN GOOD REPAIR IN A SHORT-TERM LEASE
'The test is if the state of repair of a house is such that by ordinary use damage may naturally be caused to the occupier re: personal injury to life or limb or injury to health then the house is not in all respects fit for human habitation.' Lord Atkin.
T hurt hand when cleaning the only window in the upstairs bedroom. The window was broken (sash cord) and claimed she was entitled to damages as not fit for human habitation. Unusual situation where no other room could be used, therefore exceptional situation which led to a breach. Normally cleaning a window wouldn’t be enough. Consequences, not the broken window was key. Only window, if couldn’t be closed or cleaned, then not fit for human purposes.

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Northern Sandblasting v Harris

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MAINTAIN THE PREMISES IN GOOD REPAIR IN A SHORT-TERM LEASE
LL may be liable in negligence where caused by reasonable foreseeability factors. No DoC for premises let for commercial premises.

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Austin v Bonney

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MAINTAIN THE PREMISES IN GOOD REPAIR IN A SHORT-TERM LEASE
Qld cases have set a slightly higher threshold than Northern Sandblasting for negligence. Require knowledge by LL.
Defective stairs.

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Bond v Weeks

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MAINTAIN THE PREMISES IN GOOD REPAIR IN A SHORT-TERM LEASE
Qld cases have set a slightly higher threshold than Northern Sandblasting for negligence. Require knowledge by LL. Not trivial breaches.
However loose wires in a pool, unsatisfactory electrical service to the laundry that was slightly dangerous was sufficient. Need knowledge of the defect.

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O'Brien v Robinson

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MAINTAIN THE PREMISES IN GOOD REPAIR IN A SHORT-TERM LEASE
LL must know (or should have known) of the defect to breach the covenant.
Ceiling on the flat above collapsed on T in bed asleep. Flat above had been rented to Ts who liked to party who caused ceiling to collapse. Structural weakness, which was emphasised, no way for LL to know. Latent defect: undiscoverable. Unknown to T and LL. LL doesn’t have absolute liability, for covenant to be invoked, LL must have knowledge of defect, or means of knowledge available.

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Kirby v Caruso

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THE RIGHT TO TAKE EMBLEMENTS
CL tenant covenant. Right to take profits of crops.

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Georgeson v Palmas

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TO PAY RENT
CL + Statutory covenant to pay rent.
If unfit for habitation due to fire, flood, tempest, rent shall abate proportionally.
Cleanup period does not make it unfit.

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Proudfoot v Hart

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TO KEEP PREMISES IN GOOD REPAIR: Tenant
'Good and tenantable repair' is not an absolute standard (depends on age, locality, nature of premises) as would make it reasonably fit for occupation by a reasonably minded tenant.

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Lucott v Wakely

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TO KEEP PREMISES IN GOOD REPAIR: Tenant
'Good and tenantable repair' does NOT include an obligation to replace or renew if repair is no longer possible.

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Ravenseft Properties v Davstone

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TO KEEP PREMISES IN GOOD REPAIR: Tenant
Inherent defects need to be repaired as part of 'good and tenantable repair'.

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Graham v Markets Hotel

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TO KEEP PREMISES IN GOOD REPAIR: Tenant
Inherent defects do not have to be repaired as part of 'good and tenantable repair'. HCA case and had a qualified right to repair (based on age etc.) unlike Ravenseft.

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Haskell v Marlow

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TO KEEP PREMISES IN GOOD REPAIR: Tenant
The exception to 'good and tenantable repair' is reasonable wear and tear. Only extends to direct (not consequential) effects.
Widow had a life estate. There was an obligation to keep the property in good repair and condition exception: reasonable wear and tear. Lives there for 40 years and does nothing to damage the house but doesn’t carry out any repairs: no painting, gutters fixed. She dies. Is her estate responsible for the dilapidation/state of the property?
The tenant can’t rely on ‘fair wear and tear’ exception, as an excuse for secondary consequences. It was these consequences that led to dilapidation. Had to prevent ‘fair wear and tear’ producing other consequences. Onus on lessee to prove it was due to ‘fair wear and tear’

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Warren v Keen

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CARE FOR PREMISES IN MANNER OF A REASONABLE TENANT
Lord Denning 'in a tenant like manner' means small jobs like cleaning windows, unblocking the sink, replacing fuses and not damaging the premises wilfully or negligently (includes third party's acts).
In addition, the tenant must not damage the premises wilfully or negligently; and the tenant must see that his/her family and guests do not damage it: and if they do, the tenant must repair it.

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Houlder v Gibbs

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ASSIGNMENTS AND SUBLEASES
Consent cannot be 'unreasonably withheld'.
Stricter test applied. LL's refusal must relate to personality of assignee (e.g. finances) or proposed subject matter.
Consider: The previous business experience of the assignee and the lessee’s ability to pay rent promptly (and their financial status);
The proposed use of the premises (subject matter of the lease, what are they going to do with the premises? Can reject on this basis, even if not prohibited by the lease).
Endorsed in Secured Income Real Estate v St Martins Invesments: doubted lessee’s ability to pay rent promptly. This was a legitimate reason to refuse the assignment. Not required to give reasons for rejection, however failure to give reasons may lead to inferences as to whether the refusal was reasonable.

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Pimms v Tallow Chandlers

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ASSIGNMENTS AND SUBLEASES
Broader test than Houlder. Consider the future ability to let part of the property.
Applied in McBeath Nominees v Jenkins Developments.
A lessor’s property interests can be a legitimate consideration when deciding to consent (or not). May take into account the effect on the lessor’s future ability to let different parts of their property. If a reasonable person, might have regarded the proposed transaction as damaging their property interests, even if another person might take a different view, then they may withhold consent.

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Daventry Holdings v Bacalakis Hotels

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ASSIGNMENTS AND SUBLEASES
2 elements to 'unreasonably withholding consent'
(1) subjective element: whether T submitted all necessary information
(2) objective element: applying standards of reasonable person.
Refusal is generally reasonable only if: It is based upon some quality or personality of the assignee or; It is relevant to the future conduct of the lease.
Lessor entitled to take a reasonable time to make the decision, if no answer given after this time, assumed that the request was rejected.

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Moule v Garrett

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ASSIGNMENTS AND SUBLEASES
T1 has a right to be indemnified by T2.

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Spencer's Case

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ASSIGNMENTS AND SUBLEASES
Covenant's that 'touch and concern' the land are enforceable between LL and T2.

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Re Albemarle

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ASSIGNMENTS AND SUBLEASES
Covenants that 'touch and concern' the land include paying rent, repair, not to assign/sublet.
Allowed original T to display advertising on another premise that LL owned. When lease assigned, this was a collateral covenant, it did not touch or concern the land, or affect T2-LL relationship, so couldn’t be enforced.

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Rickett v Green

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ASSIGNMENTS AND SUBLEASES
ss 117, 118 applies to equitable assignments.