Leasehold Covenants

Front 1

What are the 2 types of leasehold covenant?

Back 1

Express and implied.

Front 2

What are the main implied covenants?

Back 2

1) Quiet Enjoyment
2) Obligation to Repair

3) not to derogate from d grnt

Front 3

Southwark LBC v Mills (2001)

Back 3

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.

Front 4

What does Southwark BC v Mills say with regards to obligation to repair?

Back 4

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.

Front 5

What is stated in Lee v Leeds CC (2002)?

Back 5

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.

Front 6

Which case sets out that there is an implied condition that the premiss should be reasonably for for habitation (ie. not infested with bugs)

Back 6

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.

Front 7

What was stated in Hussain v Lancaster CC (2000)?

Back 7

-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.

Front 8

What is assignment of a tenancy?

Back 8

the transfer of the entire interest which a tenant holds to a 3rd party.

Front 9

What is sub-letting?

Back 9

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.

Front 10

What is the general rule regarding assignment/sub-letting?

Back 10

a tenant is generally allowed to assign or sublet provided there is not a covenant prohibiting restricting it.

Front 11

What is the result of assignment/sublet contrary to covenant?

Back 11

-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.

Front 12

Which case that a landlord's consent to assignment/ subletting must not be unreasonably withheld?

Back 12

Woolgar

Front 13

What is the second main advantage to landlords under the new act? (Section 22)

Back 13

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.

Front 14

What is the position of sub-tenant under the post-1996 laws?

Back 14

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.

Front 15

What is the position of sub-tenant under the post-1996 laws?

Back 15

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.

Front 16

What are the 4 remedies for breach of covenant?

Back 16

1) Damages;
2) Injunction and specific performance;
3) Termination of lease by forfeiture;
4) Waiver

Front 17

What is the only situation where damages cannot be awarded for breach of covenant?

Back 17

for non-payment of rent.

Front 18

Which case states that the courts generally avoid awarding injunctions/specific performance when damages will suffice?

Back 18

Insurance Society v Argyll Stores (1998)

Front 19

What are the 2 types of waiver?

Back 19

express and implied.

Front 20

What are the 2 steps required for waiver to be effective?

Back 20

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.

Front 21

What would be an example of implied waiver?

Back 21

continuing to accept payment of rent.